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i ^/kPNj 1 u,3 Hj. P?^ /•// ^ NORTHSARpLINA EGIsfER VOtUME14 ISSUE 17 • Pages 1492 - 1592 PUBLISHED BY The Office ofAdministrative Hearings Rules Division 6714 Mail Service Center Raleigh, NC 27699-6714 Telephone (919) 733-2678 Fax (919) 733-3462 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13 For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its components, consult with the agencies below. The bolded headings are typical issues which the given agency can address, but are not inclusive. Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc Office of Administrative Hearings Rules Division Capehart-Crocker House " 424 North Blount Street Raleigh, North Carolina 27601-2817 (919)733-2678 (919) 733-3462 FAX contact: Molly Masich, Director APA Services A' Ruby Creech, Publications Coordinator iff *^ // Fiscal Notes & Economic Analysis // Office of State Budget and Management jl 16 West Jones Street fRaleigh, North Carolina 27603-8005 contact: Warren Plonk, Economist III mmasich@oah.state.nc.us rcreech@oah.state.nc.us (919)733-7061 (919) 733-0640 FAX wplonk@osbm.state II Rule Review and Legal Issues \ Rules Review Commission \l^> 1307 Glenwood Ave., Suite 159 \\ Raleigh, North Carolina 27605 i; contact: Joe DeLuca Jr., Staff Director Counsel Bobby Bryan, Staff Attorney (919)733-2721 (919) 733-9415 FAX \V\\rt«»v \r •NH Legislative Process Concerning Rule-making Joint Legislative Administrative Procedure Oversight Committee 545 Legislative Office Building 300 North Salisbury Street (919) 733-2578 "^ Raleigh, North Carolina 276 11 (9 19) 7 1 5-5460 FAX contact: Mary Shuping, Staff Liaison marys@ms.ncga.state.nc.us >^ County and Municipality Government Questions or Notification NC Association of County Commissioners 2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 Raleigh, North Carolina 27603 contact: Jim Blackburn or Rebecca Troutman NC League of Municipalities 215 North Dawson Street Raleigh, North Carolina 27603 contact: Paula Thomas (919)715-4000 This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11 .13 NORTH CAROLINA REGISTER Volume 14, Issue 17 Pages 1492 - 1592 March 1, 2000 This issue contains documents officially filed through February 9, 2000. Office of Administrative Hearings Rules Division 424 North Blount Street (27601) 6714 Mail Service Center Raleigh, NC 27699-6714 (919)733-2678 FAX (919) 733-3462 Julian Mann 111, Director Camille Winston, Deputy Director Molly Masich, Director of APA Services Ruby Creech, Publications Coordinator Linda Dupree, Editonal Assistant Jessica Flowers, Editorial Assistant Dana Sholes, Editorial Assistant IN THIS ISSUE I. EXECUTIVE ORDERS Executive Order 167 1492 II. IN ADDITION Licensing Boards Social Work Certification & Licensure Bd. . 1493 Voting Rights Letters 1494 - 1495 III. RULE-MAKING PROCEEDINGS Environment and Natural Resources Environmental Management 1496 - 1497 Health and Human Services Child Care Commission 1496 Public Education Elementary & Secondary Education 1497 Secretary of State Securities Division 1497 - 1499 IV. PROPOSED RULES Health and Human Services Medical Assistance 1500 - 1506 Public Education Elementary & Secondary Education 1506 - 15 1 1 V. TEMPORARY RULES Agriculture Hurricane Floyd Recovery Programs 1512-1513 Commerce Departmental Rules 1513 - 1515 Environment and Natural Resources Departmental Rules 1515 - 1520 Wildlife Resources Commission 1520 - 1522 Health and Human Services Health Services 1522 - 1523 Licensing Boards Cosmetic Arts Examiners 1523 - 1524 VL APPROVED RULES 1525 1566 Commerce Cape Fear River Navigation & Pilotage Commission Environment and Natural Resources Coastal Resources Commission Departmental Rules Environmental Management Health Services Marine Fisheries Commission Health and Human Services Child Care Commission Facility Services Vocational Rehabilitation Services Independent Agencies Housing Finance Agency Licensing Boards Pharmacy, Board of VII. RULES REVIEW COMMISSION 1567-1576 VIII. CONTESTED CASE DECISIONS Index to ALJ Decisions 1577 - 1585 Text of Selected Decisions 99EHR0770 1586-1592 IX. CUMULATIVE INDEX 1-96 Norlli Carolina Register is published senu-monthK for $ 195 per \ear by the Office of Administrative Hearings, 424 North Blount Street. Raleigh, NC 2760 1 . (ISSN 1 5200604) to mail at Penodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the Norlh Carolina Register, PO Drawer 27447. Raleigh. NC 2761 1-7447, NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM The North Carolina Administrative Code (NCAC) hasfour major subdivisions of rules. Two of these, titles and chapters, are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive branch of government has been assigned a title number. Titles are further broken down into chapters which shall be numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when apyropriale . TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE TITLE DEPARTMENT LICENSING BOARDS CHAPTER 1 Administration Acupuncture 1 2 Agriculture Architecture 2 3 Auditor Athletic Trainer Examiners 3 4 Commerce Auctioneers 4 5 Correction Barber Examiners 6 6 Council of State Certified Public Accountant Examiners 8 7 Cultural Resources Chiropractic Examiners 10 8 Elections Employee Assistance Professionals 11 9 Governor General Contractors 12 10 Health and Human Services Cosmetic Art Examiners 14 11 Insurance Dental Examiners 16 12 Justice Dietetics/Nutrition 17 13 Labor Electrical Contractors 18 14A Crime Control & Public Safety Electrolysis 19 15A Environment and Natural Resources Foresters 20 16 Public Education Geologists 21 17 Revenue Hearing Ad Dealers and Fitters 22 18 Secretary of State Landscape Architects 26 19A Transportation Landscape Contractors 28 20 Treasurer Massage & Bodywork Therapy 30 *21 Occupational Licensing Boards Marital and Family Therapy 31 22 Administrative Procedures (Repealed) Medical Examiners 32 23 Community Colleges Midwifery Joint Committee 33 24 Independent Agencies Mortuary Science 34 25 State Personnel Nursing 36 26 Administrative Hearings Nursing Home Administrators 37 27 NC State Bar Occupational Therapists 38 Opticians 40 Optometry 42 Osteopathic Examination & Reg (Repealed) 44 Pastoral Counselors, Fee-Based Practicing 45 Pharmacy 46 Physical Therapy Examiners 48 Plumbing, Heating & Fire Sprinkler Contractors 50 Podiatry Examiners 52 Professional Counselors 53 Psychology Board 54 Professional Engineers & Land Surveyors 56 Real Estate Appraisal Board 57 Real Estate Commission 58 Refrigeration Examiners 60 Sanitarian Examiners 62 Social Work Certification 63 Soil Scientists 69 Speech & Language Pathologists & Audiologists 64 Substance Abuse Professionals 68 Therapeutic Recreation Certification 65 Veterinary Medical Board 66 Note: Title 2 1 contains the chapters of the various occupational licensing boards. ^ Q V3 " O (N i: (« „ 3 o — 5 ° W _!) 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O Ed UHOz Q< Ed aoz b z td U 1) o B .S -a uu oo 60 d to U d u 2 ta — 5 ra »i 2 . 13 _- > .2 o w & E to g -"i3i U ja c ^ 3 *- u •a o a. o ,p CO g 3 a. 1/^ u § oi c o Z •a 3 Q. a - -d >, X) C 6C O d 'C 3 d • => o- » u j; t/i ^^ -^ "S eo X X -- d u u ^ 2 ^ o "T o. o 1- r-4 o — o " d — >> CO JH 3 o-u s u o •d 0: "o ~Z t. d 60 d >/-i 5 '00 d d c <u 5 tj o 9 u "do o a .2 ~ .2 £ u "3 -> oD 3 13 u U CO X d 2 S i § >o '^ C^ <= o o ^ < o (A .— I 5 d ^^ o u >'3 ^1) a" u -0 S3 13 m fN ^u ^ '> r-j u Oi (/3 u d J3 u <u 13 V} 13 1^ 1) 3 'S 2 I- "3 « _o. 13 "qS O ^ <u -^ S o d CA O U •S d CO =: CO o CO o .22 o c2 " o .5-03 u- ^ 5 ON EXECUTIVE ORDERS EXECUTIVE ORDER NO. 167 EMERGENCY RELIEF FOR DAMAGE CAUSED BY JANUARY 2000 WINTER STORM WHEREAS, I have proclaimed that a state of emergency and disaster exists in North Carohna due to a winter storm; and WHEREAS,, the North Carolina Department ofTransportation has declared a State emergencyjustifying an exemption from 49 C.F.R. 390-397 (Federal Motor Carrier Safety Regulations); and WHEREAS, under the provisions of N.C.G.S. 1 66A-4(3) and 166A-6(c)(3), the Governor, with the concurrence of the Council of State, may regulate and control the flow of vehicular traffic and the operation of transportation services; and WHEREAS, with the concurrence of the Council of State, I have found that if vehicles carrying salt to alle\'iate slippery conditions on ice-covered streets, roads and highways and equipment used to restore pubhc utilities must adhere to the registration requirements of N.C.G.S. 20-86. 1 and 20- 382, fiiel tax requirements of N.C.G.S. 105-449.47, and the size and weight requirements of N.C.G.S 20-1 16 and N C.G.S. 20-1 18, then streets, roads and highways will not be cleared of slippery conditions in an expeditious manner and this will result in an imminent threat of widespread damage within the meaning of N.C.G.S. 166-A-4(3); NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and the laws of the State of North Carohna, and with the concurrence of the Council of State, IT IS ORDERED: Section h The Division of Motor Vehicles shall waive certain size and weight restrictions and penalties therefore arising under N.C.G.S. 20- 1 1 6 and N.C.G.S. 20- 11 8, and certain registration requirements and penalties therefore ansing under N.C.G.S. 20-86 1,20-382, 105-449 47, 105-449.49 for vehicles transporting salt, and equipment used to restore public utilities, along our streets, roads and highways to North Carolina's winter storm stricken counties. temporary trip permit is waived for the vehicles described above. No quarterly fiiel tax is required because the exception m N.C.G.S. 105-449.45(a)(I) applies. (B) The registration requirement under N.C.G S. 20-382 concerning intrastate and interstate for-hire authority is waived; however, vehicles shall maintain the required limits of insurance. (C) Non-participants in North Carolina's International Registration Plan will be permitted into North Carolina in accordance with the spirit of the exemptions identified by this Executive Order. Section 4^ Thesizeandweight exemption for vehicles will be allowed on all routes designated by the North Carolina Department of Transportation. This order shaU not be in effect on bridges posted pursuant to N.C.G.S. 136-72. Section s. The waiver ofregulations under 49 C.F.R. 390- 397 (Federal Motor Carrier Safety Regulations) does not apply to the CDL and Insurance Requirements This waiver shall be in effect for 30 days or for the duration of the emergency, whichever is less. Section 6. The North Carolina Department of Transportation shall enforce the conditions set forth in Sections 1, 2, and 3 in a manner which will best accomplish the implementation of this rule without endangering motorists in North Carolina. Section T Upon request, exempted vehicles shall be required to produce identification sufficient to establish that its load consists of salt and equipment used to restore public utihties which will be used for emergency relief efforts associated with the January 2000 winter storm and the alleviation of slippery conditions along North Carolina streets, roads and highways. This Executive Order is effective immediately and shall remain in effect for thirty (30) days from the date provided below. Section Z Notwithstanding the waivers set forth above, size and weight restrictions and penalties have not been waived under the following conditions; ( A) When the vehicle weight exceeds the maximum gross weight critena established by the manufacturer (GVWR) or 90,000 pounds gross weight, whichever is less. (B) When the tandem axle weight exceeds 42,000 pounds and the single axle weight exceeds 22,000 pounds. (C) When a vehicle/vehicle combination exceeds 12 feet in width and a total overall vehicle combination length of 75 feet from bumper to bumper. Done in the Capital City of Raleigh, North Carolina this 28th day of January, 2000. Section 3^ Vehicles referenced under section 1 shall be exempt from the following registration requirements (A) The $50.00 fee listed m N.C.G.S. 105-449 49 for a 14:17 NORTH CAROLINA REGISTER March 1, 2000 1492 INADDITION This Section contains public notices that are required to be published in the Register or have been approved by the Codifier ofRulesfor publication. CHAPTER 63 - SOCIAL WORK CERTIFICATION NOTICE OF PUBLIC HEARING The North Carolina Social Work Certification and Licensure Board ("Board") will hold an additional public hearing to take comment on proposed permanent rules. The Board published a Notice ofText in Volimie 14, Issue 14 ofthe North Carolina Register indicating its intent to adopt, amend and repeal rules located at Title 2 1 , Chapter 63 ofthe North Carolina Administrative Cocfe. That Notice of Text included notice of a public hearing which was held on February 7, 2000. It also included notice that the comment period mandated by G.S. 1 50B-2 1 .2(f) would run through February 14, 2000. The Board will hold an additional public hearing on March 16, 2000. The hearing will begin at 9:00 a.m., and will be held in Room G-22 of the OldEducation Building, 1 14 W. Edenton St., Raleigh, North Carolina. Pursuant to G.S. 150B-2 1.2(f) the Board will hold open the comment period through March 16, 2000. Questions regarding the public hearing and any written comments on the proposed rules should be directed to Grady L. Balentine, Jr., Assistant Attorney General, N.C. Dept. ofJustice, P.O. Box 629, Raleigh, NC 27602-0629, telephone (919)71 6-6840. The Board will consider the proposed rules at a meeting on March 17, 2000, by conference telephone. Anyone wishing to listen to the March 17, 2000 meeting should contact the Board Office at (336) 625-1679. 1493 NORTH CAROLINA REGISTER March 1,2000 14:17 INADDITION U.S. Department of Justice Civil Rights Division JDR:DHH:DCM:par Voting Section DJ 1 66-0 1 2-3 PO. Box 66128 1999-1978 Washington, D.C. 20035-6128 1999-2745 January 14, 2000 Robert E. Homik, Jr., Esq. The Brough Law Firm 1829 East Franklin St., Suite 800- A Chapel HiU,NC 275 14 Dear Mr. Homik: This refers to the June 1, 1969, March 9, 1970, April 26, 1971, annexations, 14 other annexations (Ordinance Nos. 72-1 1, 76-8, 79-5, 79-13, 79-35, 80-37, 80-38, 80-46, 82-14, 82-3 1 , 85-47, 90-16, 99-9,and 99-10), and the designation ofthe annexed areas to wards of the Town of Tarboro in Edgecombe County, North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on December 15, 1999. The Attorney General does not interpose any objection ot the specified changes. However, we note that Section 5 expressly provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes. In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that woJd otherwise require an objection comes to out attention during the remainder of the sixty-day review period. See the Proceduresfor the Administt^tion of Section 5 (28 C.F.R. 51.41 and 51.43). Sincerely, Joseph D. Rich Acting Chief, Voting Section 14:17 NORTH CAROLINA REGISTER March 1,2000 1494 INADDITION U.S. Department of Justice Civil Rights Division JDR:DHH:SMC;bab DJ 166-012-3 1999-3686 1999-3834 Voting Section P.O. Box 66128 Washington, D.C. 20035-6128 January 14, 2000 David A. Holec, Esq. City Attorney P.O. Box 7207 Greenville, NC 27835 Dear Mr. Holec: This refers to 1 3 annexations (Ordinance Nos. 95 through 103 and 129 through 132 (1999)) and their designation to districts ofthe City ofGreenville in Pitt County, North Carolina, submitted to the Attorney General pursuant to Section 5 ofthe Voting Rights Act, 42 U.S.C. 1973c. We received your submissions on November 29 and December 16, 1999. The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly provides that the failure ofthe Attorney General to object does not bar subsequent litigation to enjoin the enforcement ofthe changes. In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would otherwise require an objection comes to our attention during the remainder ofthe sixty-day review period. See the Proceduresfor the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). Sincerely, Joseph D. Rich Acting Chief, Voting Section 1495 NORTH CAROLINA REGISTER March 1, 2000 14:17 RULE-MAKING PROCEEDINGS A Notice ofRule-making Proceedings is a statement ofsubject matter ofthe agency's proposednile making The agency must publish a notice of the subject matterfor public comment at least 60 days prior to publishing the proposed text ofa rule. Publication ofa temporary rule serves as a Notice of Rule-making Proceedings and can befound in ihe Register under the section heading of Temporary Rules. A Rule-making Agenda published by an agency sen'es as Rule-making Proceedings and can be found in the Register under the section heading ofRule-making Agendas. Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES CHAPTER 3 - FACILITY SERVICES ^ Jotice of Rule-making Proceedings is hereby given by the 1\ NC Child Care Commission in accordance Mith G.S. 150B-21.2. The agency shall subsequently publish in the Resister the text ofthe rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: lONCAC 3U .0300, .0600. .0800. .1300, .1600-.2200 - Other rules may beproposed in the course ofthe rule-makingprocess. Authority for the rule-making: G.S. 143B-168.3. Statement of the Subject Matter: Child care rules regarding the health and safety of children in child care centers and homes. Reason for Proposed Action: The Child Care Commission proposes rulemaking to review requirements pertaining to the health and safety of children in child care centers andfamily child care homes. The Commission will also review rules that may need updated terminology or references. Comment Procedures: Questions or written comments regarding this matter may be directed to Janice Fain, APA Coordinator, Division ofChildDevelopment. 2201 Mail Service Center. Raleigh, NC 27699-2201, (919)662-4543. TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES 215.3(a)(1); St. 1999, c. 329. Statement of the Subject Matter: The proposed rule will set forth the procedures and requirements for collection system owners to meet the requirements of S.L. 1999, c. 329. The proposed rule will also define collection system since this term is not defined in the statutes. Thefollowing test is the proposed rule test which the Environmental Management Commission plans to adopt. Reason for Proposed Action: On July 20. 1999 the N. C. General Assembly ratified House Bill 1160. Section 11.2. of Part .XI, entitled "Environmental Management Commission to Develop Engineering Standards and Implement a Permit ProgramforMunicipal andDomestic Wastewater Collections, " states, "The Environmental Management Commission shall develop and implement a permit program for municipal and domestic wastewater collection systems on a systemwide basis...the Commission shall implement thepermitprogram over afive-yearperiod beginning 1 July 2000." The term "collection system " is not defined in the State 's statutes or administrative code. A rule which addresses the scope and requirements ofthe new permitting program must be added to 15A NCAC 2H .0200 - "Waste Not Discharged to Surface Waters. " March 1, 2000 has been selected as the proposed effective date of the temporary rule so that applications may be distributed, completed, and returned prior to the initiation ofpermitting on July 1, 2000. This Rule will define collection system and address the scope and requirements of the new permitting program. The temporary rule is intended to become permanent. However, time does not permit the adoption ofa permanent rule prior to the mandated implementation date. The Environmental Management Commission will approve the rule and grant staff the authority to proceed with temporary and permanent rule making proceduresfor publication in the NC Register. CHAPTER 2 - ENVIRONMENTAL MANAGEMENT TV Jotice ofRule-making Proceedings is hereby given hy the 1 V DENR,'Environmental Management Commission in accordance with G.S. 150B-21.2 The agency shall subsequently publish in the Register the text of the rule(s) it proposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 15A NCAC 2H .0227 - Other rules may be proposed in the course of the rule-making process. Comment Procedures: Written comments may be submitted to Kim H. Colson, Division of Water Quality, Water Quality Section, Non-Discharge Permitting Unii. 1617 Mail Sen'ice Center, Raleigh. NC 27699-1617. An information package may be obtained hy contacting the Non-Discharge Permitting Unit at (919)733-5083 (EXT. 574 OR 524). SUBCHAPTER 2H - PROCEDURES FOR PERMITS: APPROVALS SECTION .0200 - WASTE NOT DISCHARGED TO SURFACE WATERS Authority for the rule-making: G.S 143-215.1; 143- 0227 SYSTEM-WIDE COLLECTION SYSTEM 14:17 NORTH CAROLINA REGISTER March 1, 2000 1496 RULE-MAKING PROCEEDINGS PERMITTING (a) In accordance with the North Carolina Clean Water Act of 1999. S, L 1999 a 329, s, 11.2. the Director may issue system-wide permits for collection systems. (b) The following definitions apply to this Section: (1) "Collection system" means a group of contiguous sewer systems that convey municipal or domestic wastewater to a wastewater treatment facility or separately-owned sewer system. (2) "High-priority sewer line" means any aerial line, sub-waterway crossing, line contacting surface waters, siphon. Une positioned parallel to streambanks that are subject to eroding in such a manner that may threaten the sewer line, or line designated as high priority in a permit. (c) Permit apphcations for the initial issuance of a collection system permit shall be completed and submitted to the Division within 60 days of the collection system owner's receipt of the Division's request for application submittal. The Division shall request the initial application submittal by certified mail. Permit renewal requests shall be submitted to the Director at least 1 80 days prior to expiration, unless the permit has been revoked in accordance with Rule .0213 of this Section. All applications must be submitted in triplicate and made on official forms completely filled out, where applicable, and fully executed. (d) Collection systems that have a design flow and convey an actual flow less than 200.000 gallons per day shall be deemed to be permitted pursuant to G.S. 143-2 1 5. l(b)(4)e. and it shall not be necessary for the Division to issue individual permits for the operation and maintenance of the these systems and their associated management programs provided that the following criteria are met: (1) The sewer system is effectively maintained and operated at all times to prevent discharge to land or surface waters, and any contravention of the groundwater standards in 1 5A NCAC 2L .0200 or the surface water standards in 15A NCAC 2B .0200; (2) A map of the sewer system has been developed prior to January 1. 2004 and is actively maintained; £3} An operation and maintenance plan has been developed and implemented; (4) Pump stations that are not connected to a telemetry system are inspected at least three times per week until July L, 2000; thereafter, pump stations are inspected at least daily, as defined in 15A NCAC 2B .0503(5). until July L 2001; and thereafter, pump stations are inspected every day. Pump stations that are connected to a telemetry system are inspected at least once per week; (5) High-priority sewer lines are inspected at least once per every six-month period of time; (6) A general observation of the entire sewer system is conducted at least once per year; (7) Inspection and maintenance records are maintained for a period of at least three years; and (8) Overflows and bypasses are reported to the appropriate Division regional office in accordance with 15A NCAC 2B .0506(a). and public notice is provided as required by G.S. 143-2 15. IC. £e) The Director may, on a case by case basis, determine that a collection system should not be deemed to be permitted in accordance with this Rule and require the owner of the collection system to obtain an individual collection system permit from the Division if (1) The owner of the collection system does not maintain compliance with the requirements ofParagraph (d) of this Rule; or ("2") The collection system is determined to be contributing to the impairment of surface waters specified on the Division's list generated as a result of the Federal Water Pollution Control Act (Clean Water Act) Section 303(d). 33 U.S.C. Section 1313(dy Authority G.S. 143-215. 1(a); 1 43-2 15.3 (a), (d); North Carolina Clean Water Act of 1999, S.L 1999 c. 329. TITLE 16 - DEPARTMENT OF PUBLIC EDUCATION CHAPTER 6 - ELEMENTARY AND SECONDARY EDUCATION A Totice ofRule-making Proceedings is hereby given by the ly State Board of Education in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Resister the text ofthe rule(s) itproposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 1 6 NCAC 6C. 0401, .0404, .0501 -Other rules may beproposed in the course of the rule-making process. Authority for the rule-making: G.S 115-12(8), 115-272, 115 -285, 115-302.1, 115-316, 115-333, 115-408 Statement of the Subject Matter: Local school employee leave provisions and evaluation. Reason for Proposed Action: These rule-makingproceedings were initiated by the State Board of Education to make clarifying amendments to school personnel leave policies and to update the employee evaluation process. Comment Procedures: Written comments may be submitted to Harry E. Wilson, State Board ofEducation, 301 N. Wilmington St., Raleigh, NC 27601-2625. TITLE 18 - DEPARTMENT OF SECRETARY OF STATE CHAPTER 6 - SECURITIES DIVISION 1497 NORTH CAROLINA REGISTER March 1, 2000 14:17 RULE-MAKING PROCEEDINGS Notice ofRule-making Proceedings is hereby given by the NC Department of the Secretary of State in accordance with G.S. 150B-21.2. The agency shall subsequently publish in the Register the text ofthe rule(s) itproposes to adopt as a result of this notice of rule-making proceedings and any comments received on this notice. Citation to Existing Rules Affected by this Rule-Making: 18 NCAC 6 . 1402, . 1413, . 1 709 Other rules may be proposed in the course of the rule-making process. Authority for the rule-making: G.S. 78A-37(a); 78A-39; 78A- (b)(4); 78A-49(a); 78C-19(b); 78C-30(a); 78-30(b). Statement of the Subject Matter: These amendments relate to the examinations required of applicants for registration as investment advisors, investment advisor representatives, and securities salesmen. They are intended to implement a uniform and coordinatedpolicy by state securities regulators developed andpromoted by the North American Securities Administrators Association(NASAA). Reason for Proposed Action: As ofJanuary 1, 2000, NASAA implemented a revised Uniform Investment Advisor State Law Examination (known as a Series 65 Exam) and retired the Series 65 Exam contemplated by 18 NCAC 6 .1709 that was in use prior to that date. Additionally, as ofJanuary 1, 2000, NASAA requires that a person desiring to take the Uniform Combined State Law Examination (known as the Series 66 Exam) to qualify candidates as both securities agents and investment adviser representatives mustpass the NASD General Securities Representative Examination (known as the Series 7 Exam) as a co-requisite for taking the Series 66 Exam. Comment Procedures: Comments concerning these rules may be addressed to David S. Massey, Deputy Securities Administrator at 300 N Salisbury St., Suite 100, Raleigh, NC 27603, (919) 733-3924. Comments must be received no later than May 1, 2000. SECTION .1400 - REGISTRATION OF DEALERS AND SALESMEN examination as required by Rule .1413 of this Section. (b) The application for registration as a salesman shall be filed as follows: (1) NASD member dealers shall file all salesman applications for registration in the State of North Carolina with the NASAA/NASD Central Registration Depository, PrO:—Bcrx — 37441, Washington, — DC. 20013; P.O. Box 9401. Gaithersburg. MD 28898-9401. (2) Non-NASD member dealers shall file all salesman applications for registration in the State of North Carolina directly with the Securities Division. (c) The salesman or the dealer for which the salesman is registered shall file with the administrator, as soon as practicable but in no event later than 30 days, notice of any disciplinary action taken against a salesman by any exchange of which the dealer is a member; the Securities and Exchange Commission; the Commodity Futures Trading Commission; any national securities association registered with the Securities and Exchange Commission pursuant to Section 1 5A ofthe Securities Exchange Act of 1934 or any state securities comrmssion and of any civil suit, warrant, criminal warrant, or criminal indictment filed against the salesman alleging violation of any federal or state securities laws. If the information contained in any document filed with the administrator is or becomes inaccurate or incomplete in any material respect, the salesman or the dealer for which the salesman is registered shall file a correcting amendment as soon as practicable but in no event later than thirty days. Such filing is to be made by NASD member dealers and their salesmen to the NASAA/NASD Central Registration Depository and non-NASD member dealers and their salesmen shall make such filing directly with the Securities Division. (d) Registration becomes effective at noon of the 30* day after a completed application is filed or such earlier time upon approval of the application by the administrator, unless proceedings are instituted pursuant to G.S 78A-39. The administrator may by order defer the effective date after the filing of any amendment but no later than noon of the 30* day after the filing of the amendment. (e) A salesman shall only be registered in this State with one dealer. .1402 APPLICATION FOR REGISTRATION OF SALESMEN (a) The application for registration as a salesman shall contam the following: (1) an executed Uniform Application for Securities and Commodities Industry' Representative and/or Agent (Form U-4) or the appropriate successor form; (2) a fee in the amount of fifty-five dollars ($55.00); (3) evidence of a passing grade of 70 percent on either: (A) the Uniform Securities Agent S^ate Law Examination (USASLE-Series 63), or (B) both the Uniform Combined State Law Examination (Series 66 Exam) and the General Securities Representative Exammation (Series 2 Exam), as well as the appropriate NASD AuthorityG.S. 78A-37(a); 78A-37(b); 78A-38(c); 78A-39(b)(4); 78A-49(a). .1413 SALESMAN EXAMINATION REQUIRED (a) Every application for registration as a salesman shall show evidence of a minimum passing grade of seventy percent on either: (1) the Uniform Securities Agent State Law Examination (USASLE-Series 63): or (2) both the Uniform Combined State Law Examination (Series 66 Exam) and the General Securities Representative Examination (Series 7 Exam). The USASLE-Series—-63 — examinat ion—rs These examinations are given by the National Association of Securities Dealers (NASD). Each application for 14:17 NORTH CAROLINA REGISTER March 1, 2000 1498 RULE-MAKING PROCEEDINGS registration must also show that the apphcant has passed the appropriate NASD exam apphcable to apphcants for registration as a securities salesman . The scheduled dates, times and locations may be obtained by contacting the NASD, 1735 K Street Noi'tliwest7~Wasliiugton, D.C. Central Registration Depository, P.O. Box 9401, Gaithersburg, MD 28898-9401 (202) 728-8800 (301) 590-6500 or the Securities Division. (b) The requirement of Paragraph (a) of this Rule shall not apply to any salesman who has been registered continuously since April 1 , 1981; provided that a lapse in registration in this State of less than one year shall not require compliance with Paragraph (a) of this Rule. New registrants after April 1, 1981, who have not been registered previously in this State and previously registered salesmen in this State whose registration has lapsed for one year or more shall comply with Paragraph (a) of this Rule. (c) The administrator may, upon a showing ofluidue haidship good cause, waive the requirements of Paragraph (a) of this Rule. For purposes of this Rule, "good cause" for waiver of the examination requirement is shown by a demonstration that the applicant's understanding of the ethics and legal guidelines applicable to securities salesmen is comparable to that shovm by evidence ofa passing grade on the examination for which waiver is sought. (d) Termination ofthe salesman's registration with the NASD for violation of NASD rules shall automatically terminate the salesman's registration with the State of North Carolina. Authority G.S. 78A-39(b)(4); 78A-49(a). SECTION .1700 - REGISTRATION OF INVESTMENT ADVISERS AND INVESTMENT ADVISER REPRESENTATIVES .1709 EXAMINATIONS FOR INVESTMENT ADVISERS AND INVESTMENT ADVISER REPRESENTATIVES fa) — Unless othei-wise waived by th e administrator, an investment-adviser regi stered or required to be registered under State Law Examination with a score of 70- or bet t er as a condit ion of registration as an investment adviser .—If the inv es tin enl adviser- is not an individual, an offic er (if the is^a pax tiiei ship) shall take and pass tlus examination: (b) Unle ss otherwise waived by the administrator, an investment adviser representative-registered-or required to be registered^ Tinder tiie Act shall~take^ and pass the Umfoiin Inv estment Adviser State Law Examination with a score of 70 percent or better. (c) Any person who was regi stered as an investment advisei or investment adviser repres entative in this state as of the effective date of tliese Rule s shall not be required to take and pass tlie Uniform Investment Adviser State Law Examination. fd) — An applicant who has taken and passed the Uniform Inv estment Adviser State Law Examination with ;a score--iofTe percent or better witliin two years prior to the date the application is filed with tlie administrator, or at any time if the applicant has not been inacti v e in tlie inv estment advisory business for more than two years when the application is filed; shall not be required to take and pass tlie Uniform Inv es tinenl Adviser State Law Examination again. (a) Examination Requirements. A person applying to be registered as an investment adviser or investment adviser representative under the Investment Advisers Act shall provide the Administrator with proof that he or she has obtained a passing score on either: (1) The Uniform Investment Adviser Law Examination (Series 65 Exam); or (2) The General Securities Representative Examination (Series 7 Exam) and the Uniform Combined State Law Examination (Series 66 Exam). In the event the applicant for registration as an investment adviser is an entity, rather than an individual, the examination shall be taken on behalf of the applicant by one of its officers, a general partner, a manager, or other managing executive of comparable status and position. (b) Grandfathering. An individual who has not been registered in any jurisdiction for a period of two years shall be required to comply with the examination requirements of Paragraph (a) of this Rule. (c) Waivers. The examination requirement shall not apply to an individual who currently holds one of the following professional designations: (1) Certified Financial Planner (CFP) awarded by the International Board of Standards and Practices for Certified Financial Planners. Inc.; (2) Chartered Financial Consultant (ChFC) awarded by the American College. Bryn Mawr. Pennsylvania; (3) Personal Financial Specialist (PFS) awarded by the American Institute of Certified Public Accountants; (4) Chartered Financial Analyst (CFA) awarded by the Institute of Chartered Financial Analysts; (5) Chartered Investment Counselor (CIC) awarded by the Investment Counsel Association ofAmerica. Inc.; or (6) Such other professional designation as the Administrator may by order recognize. Authority G.S. 78C-19(b)(5); 78C-30(a): 78C-30(b). 1499 NORTH CAROLINA REGISTER March 1, 2000 14:17 PROPOSED RULES This Section contains the text ofproposed rules. At least 60daysprior to the publication oftext, the agencypublisheda Notice ofRule-making Proceedings. The agency must accept comments on theproposed rulefor at least 30 daysfrom the publication date, or until the public hearing, or a later date ifspecified in the notice by the agency. The required comment period is 60 daysfor a rule that has a substantial economic impact ofat leastfive million dollars ($5,000,000). Statutory reference: G.S. 150B-21.2. TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES Notice is hereby given in accordance with G S. 1508-21. 2 that the DHHS - Division ofMedical Assistance intends to amend rules cited as 10 NCAC 26B 0113. 26H .0304 and repeal the rules cited as 10 NCAC 26M .0301-.0305. Notice of Rule-making Proceedings was published in the Register on August 16, 1999for 10 NCAC 26B .01 13; 26M.0301 -.0305 and on September 1, 1999for 10 NCAC 26H .0304. Proposed Effective Date: August 1, 2000 A Public Hearing vt'/// Ae conducted at 1:30p.m. on March 21, 2000 at 1985 UmsteadDr., Room 132, Kirby Building, Raleigh, NC 27603. Reason for Proposed Action: 10 NCAC 26B .0113, 26M .0301-.0305 - The action was necessitated by the termination of the Carolina Alternatives Waiver and the exclusion of state hospitals as eligible providers. 10 NCAC 26H .0304 - The application of the upper payment limit is an annual test performed by the Division of Medical Assistance to assure that the program is in compliance with the applicablefederal regulations. The review this year ofthe cost report informationfor the fiscal period ending June 30, 1998, adjustedforwardfor inflation, would be expected to have a total ofpayments that would exceed the total ofcost. Comment Procedures: Written comments concerning this rule-making action must be submitted by March 31, 2000 to Portia W. Rochelle, Rule-making Coordinator, Division of Medical Assistance, 1985 Umstead Drive, 2504 Mail Service Center, Raleigh, NC 27699-2504. Fiscal Impact State Local Sub. None / 10 NCAC 26M 0301-0305 10NCAC26B.0113, 26H.0304 CHAPTER 26 - MEDICAL ASSISTANCE SUBCHAPTER 26B - MEDICAL ASSISTANCE PROVIDED SECTION .0100 - GENERAL .01 13 NC MEDICAID CRITERIA FOR CONTINUED ACUTE STAY IN AN INPATIENT PSYCHIATRIC FACILITY The following criteria apply to individuals under the age of2 1 in a psychiatric hospital or in a psychiatric unit of a general hospital, and to individuals aged 21 through 64 receiving treatment in a psychiatric unit of a general hospital These criteria shall be applied after the initial admission period of up to three days. To qualify for Medicaid coverage for a contmuation of an acute stay in an inpatient psychiatric facility a patient must meet each of the conditions specified in Items ( 1 ) through (4) of this Rule. To qualify for Medicaid coverage for continued post-acute stay in an inpatient psychiatric facility a patient must meet all of the conditions specified in Item (5) of this Rule. ( 1 ) The patient has one of the following: (a) A current DSM-IV, Axis I diagnosis; or (b) A current DSM-IV, Axis II diagnosis and current symptoms/behaviors which are characterized by all of the following: (i) Symptoms/behaviors are likely to respond positively to acute inpatient treatment; and (ii) Symptoms/behaviors are not characteristic of patient's baseline fxinctioning; and (iii) Presenting problems are an acute exacerbation of dysfunctional behavior patterns which are recurring and resistive to change. (2) Symptoms are not due solely to mental retardation; (3) The symptoms of the patient are characterized by: (a) At least one of the following: (i) Endangerment of self or others; or (ii) Behaviors which are grossly bizarre, disruptive, and provocative (e.g. feces smearing, disrobing, pulling out hair); or (iii) Related to repetitive behavior disorders which present at least five times in a 24- hour period, or (iv) Directly result in an inabihty to maintain age appropriate roles; and (b) The symptoms of the patient are characterized by a degree of intensity sufficient to require continual medical/nursing response, management, and monitoring. (4) The services provided in the facility can reasonably be expected to improve the patient's condition or prevent ftuther regression so that treatment can be continued on a less intensive level ofcare, and proper treatment of the patient's psychiatric condition requires services on an inpatient basis under the direction of a physician. (5) Exceprt—for—patients—receiving services—through Cai'oliua Alteruatires and except t 14:17 NORTH CAROLINA REGISTER March 1, 2000 1500 PROPOSED RULES hospitals where the discliarge requirement s ai e set out in 10 NCAC 15A, iii In the event that not all of the requirements specified in Items ( 1 ) through (4) ofthis Rule are met, reimbursement may be provided for patients through the age of 1 7 for continued stay in an inpatient psychiatric facihty at a post-acute level of care to be paid at the High Risk Intervention Residential High (HRI-R High) rate ifthe facility and program services are appropriate for the patient's treatment needs and provided that all of the following conditions are met: (a) The psychiatric facihty has made a referral for case management and after care services to the area Mental Health, Developmental Disabilities, Substance Abuse (MH/DD/SA) program which serves the patient's county of eligibihty. (b) The area MH/DD/SA program has found that no appropriate services exist or are accessible within a clinically acceptable waiting time to treat the patient in a community setting. (c) The area MH/DD/SA program has agreed that the patient has a history of sudden decompensation or significant regression and experiences weakness in his or her environmental support system which are likely to trigger a decompensation or regression. This history must be documented by the patient's attending physician. (d) The inpatient facility must have a contract to provide HRI-R, High with the area MH/DD/SA program which serves the patient's county of eligibility, or the area program's agent. Psychiatric hospitals or psychiatric units in general hospitals are eligible to establish contract relationships with all non-Carolina Alternatives area MH/DD/SA programs or their agents in accordance with statutory procedures as defined in G.S. 122C-142. (e) The Child and Family Services Section of the Division of Mental Health, Developmental Disabilities, Substance Abuse Services shall approve the use of extended HRI-R, High, based on criteria in Sub-items (a)-(c) of this Item. (f) The area MH/DD/SA program shall approve the psychiatric facility for the provision of extended HRI-R High, receive claims fi^om the inpatient facility, and provide reimbursement to the facility in accordance with the terms of its contract. NOTE: .0304 The bold text reflects the changes which were approved by the Rules Review Commission and is waiting for Legislative Session 2000. RATE SETTING METHOD FOR NON-STATE FACILITIES (a) A prospective rate shall be determined annually for each non-state facility to be effective for dates of service for a 12 month rate period beginning each July 1 . The prospective rate shall be paid to the provider for every Medicaid eligible day during the applicable rate year. The prospective rate may be determined after the effective date and paid retroactively to that date. The prospective rate may be changed due to a rate appeal under Rule .0308 ofthis Stale Plan Section or facility reclassification under Paragraph (b) of this Rule. Each non-state facihty, except those facilities where Paragraph (v) of this Rule applies, shall be classified into one of the following groups: (1) Group 1- Facilities with 32 beds or less. (2) Group 2- Facilifies with more than 32 beds. (3) Group3-Facilities with medically fragile clients. For rate reimbursement purposes under this Rule medically fragile clients are defined as any individual with complex medical problems who have chronic debilitating diseases or conditions of one or more physiological or organ systems which generally make them dependent upon 24-hour a day medical/nursing/health supervision or intervention. (4) Facilifies in group 1 or 2 in Subparagraph (a)(1) or (2) of this Rule shall be fiirther classified in accordance to the level of disability of the facility's clients, as measured by the Developmental Disabilities Profile (DDP) copyrighted assessment instrument which along with the scoring instrument are hereby incorporated by reference, including subsequent amendments and editions. This material is available for inspection and copies may be obtained from the Division ofMedical Assistance, 1985 Umstead Drive, Raleigh, North Carolina 27603 at a cost of twenty cents ($.20) per page. A summary of the levels of disability is shown in the following chart: FACILITY DDP SCORE Level Low 1 200.00 2 125.00 3 100.00 4 75.00 5 50.00 High 300.00 199.99 124.99 99.99 74.99 AuthorityG.S. l08A-25(h); 108A-54: 42C.F.R. 441 Subpart D. SUBCHAPTER 26H - REIMBURSEMENT PLANS SECTION .0300 - ICF-MR PROSPECTIVE RATE PLAN (b) Facilifies shall be reclassified into appropriate groups as defined in Paragraph (a) of this Rule. (1) When a facility is reclassified, the rate shall be adjusted retroactively back to the date of the event that caused the reclassification. This adjustment shall give fiill consideration to any reclassification based 1501 NORTH CAROLINA REGISTER March 1, 2000 14:17 PROPOSED RULES on the change in facts or circumstances during the year. Overpayments related to this retroactive rate adjustment shall be repaid to the Medicaid program. Underpayments related to this retroactive rate adjustment shall be paid to the provider. (2) The provider shall be given the opportunity to appeal the merits of the reclassification of any facility, prior to any decision by the Division of Medical Assistance. (3) The provider shall be notified in writing 30 days before the implementation ofnew rates resulting from the reclassification of any facihty. (4) The providers and the Division of Medical Assistance shall make every reasonable effort to ensure that each facility is properly classified for rate setting piuposes. (5) A provider shall file any request for facility reclassification in writing with the Division of Medical Assistance no later than 60 days subsequent to the proposed reclassification effective date. (6) For facilities certified prior to July 1, 1993, the facility DDP score calculated for fiscal year 1993 shall be used to estabhsh proper classification at July 1, 1995. (7) For facihties certified after June 30, 1993, the most recent facility DDP score shall be used to establish proper classification. (8) A facility reclassification review shall use the most current facility DDP score. (9) A facility's DDP score shall be subject to independent vaUdation by the Division of Medical Assistance. (10) A new facility that has not had a DDP survey conducted on its clients shall be categorized as a level 2 facility for rate setting purposes, pending completion of the DDP survey. Upon completion of the DDP survey, the facility shall be subject to reclassification and rates shall be adjusted retroactively back to the date of certification. Overpayments related to this retroactive adjustment shall be paid to the Medicaid program. Underpayments related to this retroactive rate adjustment shall be paid to the provider, (c) Facility rates under this Rule shall be estabhshed at July 1, 1995, under the following: (1) For facilities certified prior to July 1, 1993, rates shall be derived from the 1993 cost reports. (2) For facilities certified during fiscal year 1993-1994, the fiscal year 1994 facility specific cost report shall be used to derive rates. (3) For facihties certified during fiscal year 1994-1995, the fiscal year 1995 facility specific cost report shall be used to derive rates. (A) Rates for these facilities shall not be adjusted, except for the impact of inflation under Paragraph (k) of this Rule, until the fiscal year 1995 cost report has been properly reviewed. Rates for these facilities shall be adjusted retroactively back to July 1, 1995, once the fiscal year 1 995 facility specific cost report has been properly reviewed. Overpayments related to this retroactive rate adjustment shall be repaid to the Medicaid program. Underpayments related to this retroactive rate adjustment shall be paid to the provider. (4) Facilities with rates established during a rate appeal proceeding with the Division of Medical Assistance during fiscal years 1994 or 1995 shall not have their rates established in accordance with Subparagraph (c)(1), (c)(2), or (c)(3) of this Rule (2^ The rates for these facilities shall remain at the level approved in the rate appeal proceeding adjusted only for inflation, as reflected in Paragraph (k) of this Rule. (d) For facilities certified after June 30, 1993, rates developed from filed cost reports for fiscal years subsequent to 1 993 may be retroactively adjusted if there is found to exist more than a two percent difference between the filed per diem cost and either the desk audited or field audited per diem cost for the same reporting period. Rates developed from desk audited cost reports may be retroactively adjusted if there is found to exist more than a two percent difference between the desk audited per diem cost and the field audited per diem cost for the same reporting period. The rate adjustment may be made after written notification to the provider 30 days prior to implementation of the rate adjustment. (e) Each prospective rate developed in accordance with Subparagraph (c)(1), (c)(2), or (c)(3) ofthis Rule consists ofthe sum of two components as follows: ( 1 ) Indirect care rate. (2) Direct care rate. (f) A uniform industry wide indirect care rate shall be estabhshed for each facihty category shown under Subparagraph (a)(1), (a)(2), or (a)(3) of this Rule. ( 1 The indirect rate for group 1 facilities is based on the fiftieth percentile of the following costs incurred by all group 1 facilities with six beds or less, except those related by common ownership or control to more than 40 said facilities: (A) The sum of the cost of property ownership and use, administrative and general, and operation and maintenance ofplant, as determined by the Myers and Stauffer study performed on the 1993 base year cost reports. (2) The indirect rate for group 2 facilities is based on the fiftieth percentile of the costs noted in Part (0( 1 )fA) of this Rule incurred by the group 2 facilities, as determined by the Myers and Stauffer study performed on the 1 993 base year cost reports (3) The indirect rate for group 3 facilities is based on the fiftieth percentile of the costs noted in Part (f)( 1 )(A) of this Rule incurred by the group 3 facilities as determined by the Myers and Stauffer study performed on the 1993 base year cost repons (4) The indirect rates established under Subparagraphs (0( ! ), (f)(2), and (f)(3) of this Rule shall be reduced as determined based on industry cost analysis by an amount not to exceed four percent to account for 14:17 NORTH CAROLINA REGISTER March 1, 2000 1502 PROPOSED RULES expected operating efficiencies, (g) The direct care rate for facilities certified prior to July 1, 1993, shall be based on the Myers and Stauffer study performed on the 1993 base year cost reports. ( 1 ) The direct care rate for all facilities certified during fiscal years subsequent to fiscal year 1 993 is based on the first facility specific cost report filed after certification. Based on said cost report, the direct care rate is equal to the sum of all allowable costs reflected in the ICF-MR cost report cost centers, as included in the ICF-MR cost report format effective July 1, 1993, except for the following indirect cost centers: (A) Property Ownership and Use (B) Operation and Maintenance of Plant and Housekeeping-Non-Labor (C) Administrative and General (2) The direct care rate shall be limited to the lesser of the actual amount incurred in the base year or the cost limit derived fi-om the fiftieth percentile of direct care costs incurred by the related facihty group in the fiscal year 1 993 base year, based on the Myers and Stauffer study. (3) The fiftieth percentile cost limit shall be reduced by one percent each year, for the four year period beginning July 1, 1996, in order to account for expected operating efficiencies, as determined based on industry cost analysis. (4) The fiftieth percentile cost limit shall be increased each year by price level changes calculated in accordance with Paragraph (k) of this Rule. (h) The indirect rate shall not be subject to cost settlement. ( 1 Costs above the indirect rate shall not be paid to the provider. (2) Costs savings below the indirect rate shall not be recouped fi^om the provider. (i) The direct care rate shall be subject to cost settlement, based on the cost report, subject to audit, filed with the Division of Medical Assistance. ( 1 Costs above the direct rate shall not be paid to the provider. (2) Cost savings below the direct rate shall be recouped fi"om the provider. (j) Facilities with rates estabhshed during a rate appeal proceeding with the Division ofMedical Assistance during fiscal years 1994 or 1995 may choose to cost settle under the provisions of Paragraphs (h) and (i) of this Rule, or under the following procedure: ( 1 ) If, during a cost reporting period, total allowable costs are less than total prospective payments, then a provider may retain one-half of said difference, up to an amount of five dollars ($5.00) per pafient day. The balance of unexpended payments shall be refunded to the Division of Medical Assistance. Costs in excess of a facility's total prospective payment rate are not reimbursable. (2) The facilities subject to the this Paragraph shall make the election on cost settlement methodology on or before the filing of the annual cost report with the Division of Medical Assistance (3) An election to follow the cost settlement procedures of Paragraphs (h) and (i) of this Rule shall be irrevocable. (4) Rates established for these facilities during future rate appeal proceedings shall be subject to the cost settlement procedures ofParagraphs (h) and (i) ofthis Rule. (k) To compute each facility's current prospective rate, the direct and indirect rates established by Paragraphs (f) and (g) of this Rule shall be adjusted for price level changes since the base year. No inflation factor for any provider shall exceed the maximum amount permitted for that provider by federal or state law and regulations. (1) Price level adjustment factors are computed using aggregate costs in the following manners: (A) Costs shall be separated into three groups: (i) Labor, (ii) Non-labor, (iii) Fixed. (B) The relative weight of each cost group is calculated to the second decimal point by dividing the total costs of each group (labor, nonlabor, and fixed) by the total cost of the three categories. (C) Price level adjustment factors for each cost group shall be established as follows: (i) Labor. The percentage change for labor costs is based on the projected average hourly wage of North Carolina service workers. Salaries for all personnel shall be hmited to levels of comparable posirions in state owned facilities or levels specified by the Division of Medical Assistajice. Assistance based upon market analysis. (ii) Nonlabor. The percentage change for nonlabor costs is based on the projected annual change in the implicit price deflator for the Gross National Product as provided by the North Carolina Office of State Budget and Management. (iii) Fixed. No price level adjustment shall be made for this category. (D) The weights computed in Part (k)( 1 )(B) ofthis Rule shall be multiplied by the rates computed in Part (kX 1 )(C) of this Rule. These weighted rates shall be added to obtain the composite inflation rate to be applied to both the direct and indirect rates. (2) Ifnecessary, the Division ofMedical Assistance shall adjust the annual inflation factor in order to prevent payment rates fi"om exceeding upper payment limits established by Federal Regulations. (1) Effective July 1, 1995, any rate reductions resulting from this State-Ptan Rule shall be implemented based on the 1503 NORTH CAROLINA REGISTER March 1, 2000 14:17 PROPOSED RULES following deferral methodology: ( 1 ) Rates shall be reduced for the excess of current rates over base year costs plus inflation. (2) Rates shall be reduced a maxmium of 50 percent of the fiscal 1996 inflation rate for the excess of actual costs over applicable cost limits. This reduction shall result in the facility receiving at a minimum 50 percent of the 1996 inflation rate. Any excess reduction shall be earned forward to fiiture years. (3) Total reduction in future years related to the excess reduction carried forward from Subparagraph (1)(2) of this Rule, shall not exceed tJie annual rate of inflation. This reduction shall result in the facility receiving at a minimum the rate established in Paragraph (!)(2) of this Rule. Any excess reduction shall be carried forward to future years, until the established rate equals that generated by Paragraphs (f), (g), and (k) of this Rule. (4) Rates calculated based on Subparagraphs (1)(2) and (3) of this Rule shall be cost settled based on the provisions of Subparagraph (j)(l) of this Rule until the fiscal year that the facility receives fiill price level increase under Paragraph (k) of this Rule. (A) A provider may make an irrevocable election to cost settle under the provisions of Paragraphs (h) and (i) of this Rule during the deferral period. (B) Once the rates calculated based on Subparagraphs (1)(2) and (3) ofthis Rule reach the fiscal year that the facility receives the full price level increase under Paragraph (k) ofthis Rule, then said fiscal year's rates shall be cost settled based on Paragraphs (h) and (i) of this Rule. (C) Chain providers are allowed to file combined cost reports, for cost settlement purposes, for facilities that use the same cost settlement methodology and have the same uniform rate. (D) A provider may request from the Division of Medical—Assistance permission elect to continue cost settlement under Subparagraph G)(l) of this Rule after the deferral period expires. Said request election shall be made each year, 30 days prior to the cost report due date. (m) The initial rate for facilities that have been awarded a Certificate of Need is established at the lower of the fair and reasonable costs m the provider's budget, as determined by the Division of Medical Assistance, or the projected costs in the provider's Certificate of Need application, adjusted from the projected opening date in the Certificate of Need application to the current rate period in which the facility is certified based on the pnce level change methodology set forth in Paragraph (k) of this Rule, or the rate currently paid to the owning provider, if the provider currently has an approved chain rate for facilities in the related facility category. The rate may be rebased to the actual cost incurred m the first fiill year of normal operations in the year an audit of the first year of normal operanon is completed. ( 1 ) In the event of a change in ownership, the new owner receives no more than the rate ofpayment assigned to the previous owner. (2) Except in cases wherein the provider has failed to file supporting information as requested by the Division of Medical Assistance, initial rates shall be granted to new enrolled facilities no later than 60 days from the provider's fihng of properly prepared budgets and supporting information. (3) The initial rate for a new facility shall be applicable to all dates of service commencing with the date the facility is certified by the Medicaid Program. (4) The initial rate for a new facility shall not be entered into the Medicaid payment system until the facility is properly enrolled in the Medicaid program and a Medicaid identification number has been assigned to the facility by the Division of Medical Assistance. (n) A provider with more than one facility may be allowed to recover costs through a combined uniform rate for all facilities. ( 1 Combined uniform rates for chain providers shall be approved upon written request fi"om the provider and after review by the Division of Medical Assistance. (2) In determining a combined uniform rate for a particular facility group, the weighted average ofeach facility's rate, calculated in accordance to all other provisions of this Rule, shall be used. (3) A chain provider with facility(s) that fall under Paragraphs (h) and (i) of this Rule and with facihty(s) that fall under Subparagraph (1)(4) of this Rule may elect to include the facilities in a combined cost report and elect to cost settle under either Paragraphs (h) and (i) or Subparagraph (1)(4) of this Rule. The cost settlement election shall be made each year, 30 days prior to the cost report due date. (o) Each out-of-state provider shall be reimbursed at the lower of the applicable North Carolina rate, as established by this plan Rule for in-state facilities, or the provider's per diem rate as established by the state in which the provider is located. An out-of-state provider is defined as a provider that is enrolled in the Medicaid program of another state and provides ICF-MR services to a North Carolina Medicaid client in a facility located in the state of enrollment. Rates for out-of-state providers are not subject to cost settlement. (p) Under no circumstances shall the Medicaid per diem rate exceed the private pay rate of a facility. (q) Should the Division of Medical Assistance be unable to establish a rate for a facility, based on this Rule and the apphcable facts known, the Division of Medical Assistance may approve an interim rate. (1) The intenm rate shall not exceed the rate cap established under this Rule for the applicable facility group. (2) The interim rate shall be replaced by a permanent rate, effective retroactive to the commencement ofthe interim rate, by the Division of Medical Assistance, upon the determination of said rate based on this Rule and the applicable facts. (3) The provider shall repay to the Division of Medical 14:17 NORTH CAROLINA REGISTER March 1, 2000 1504 PROPOSED RULES Assistance any overpayment resulting from the interim rate exceeding the subsequent permanent rate. (r) In addition to the prospective per diem rate developed under this Rule, effective July 1, 1992, an interim payment add on shall be applied to the total rate to cover the estimated cost required under Title 29, Part 1910, Subpart 2, Rule 1910,1030 of the Code of Federal Regulations. The interim rate shall be subject to final settlement reconcihation with reasonable cost to meet the requirements of Rule 1910 1030. The final settlement reconciliation shall be effectuated during the annual cost report settlement process. An interim rate add on to the prospective rate shall be allowed, subject to final settlement reconciliation, in subsequent rate periods until cost history is available to include the cost of meeting the requirements of Rule 1910. 1030 in the prospective rate. This interim add on shall be removed, upon 10 days written notice to providers, should it be determined by appropriate authorities that the requirements under Title 29, Part 1910, Subpart 2, Rule 1910.1030 of the Code of Federal Regulations do not apply to ICF-MR iacihties. (s) All rates, except those noted otherwise in this Rule, approved under this Rule are considered to be permanent. (t) In the event that the rate for a facility caimot be developed so that it shall be effective on the first day ofthe rate period, due to the provider not submitting the required reports by the due date, the average rate for facilities in the same facility group, or the facility's current rate, whichever is lower, shall be in effect until such time as the Division of Medical Assistance can develop a new rate. (u) When the Division ofMedical Assistance develops anew rate for a facility for which a rate was paid in accordance with Paragraph (t)of this Rule, the rate developed shall be effective on the first day of the second month following the receipt by the Division of Medical Assistance of the required reports. The Division of Medical Assistance may, upon its own motion or upon application and jnst cause related to patient care shown by the provider, within 60 days subsequent to submission of the delinquent report, make the rate retroactive to the beginning of the rate period in question. Any overpayment to the provider resulting from this temporary rate being greater than the final approved prospective rate for the faciUty shall be repaid to the Medicaid Program. (v) ICF-MR facilities meeting the requirements of the North Carolina Division ofFacility Services as a facility affiliated with one or more of the four medical schools in the state and providing services on a statewide basis to childien with various developmental disabihties who are in need of long-term high acuity nursing care, dependent upon high technology machines (i.e. ventilators and other supportive breathing apparatus) monitors, and feeding techniques shall have a prospective payment rate that approximates cost of care. The payment rate may be reviewed periodically, no more than quarterly, to assure proper payment. A cost settlement at the completion of the fiscal period year end is requu'ed. Payments in excess of cost are to be returned to the Division of Medical Assistance. (w) A special payment in addition to the prospective rate shall be made in the year that any provider changes from the cash basis to the accrual basis of accounting for vacation leave costs. The amount of this payment shall be determined in accordance with Title XVIII allowable cost principles and shall equal the Medicaid share of the vacation accrual that is charged in the year of the change including the cost of vacation leave earned for that year and all previous years less vacation leave used or expended over the same time period and vacation leave accrued prior to the date of certification. The payment shall be made as a lump sum payment that represents the total amount due for the entire fiscal year. An interim payment may be made based on an estimate of the cost of the vacation accrual. The payment shall be adjusted to actual cost after audit. (x) The annual prospective rate, effective beginning each July 1 , for facilities that commenced operations under the Medicaid Program subsequent to the base year used to establish rates, and therefore did not file a cost report for the base year, shall be based on the facility's initial rate, established in accordance with Paragraph (m) of this Rule, and the applicable price level changes, in accordance with Paragraph (1) of this Rule. (v) Effective for fiscal years beginning on or after fiscal year 1998, installation cost of Fire Sprinkler Systems in an ICF-MR Facility shall be reimbursed in the following manner. (1) Upon receipt of the documentation listed in Parts CA) through (E) of this Subparagraph, the Division of Medical Assistance shall reimburse directly to the provider 90 percent of the verified cost. ££} All related invoices. Verification from the Division of Facility Services that the Sprinkler System is neededr needed to maintain certification for participation in the Medicaid program- Statement from appropriate authorities that the Sprinkler System has been installed. Examples of a ppropriate authorities for this purpose would include local building inspectors, fire/safety inspectors, insurance company inspectors, or the construction section of the Division of Facilities Services. (D) Three bids to install the system. (E) Prior approval from the Division ofMedical Assistance for any installation projected to cost more than twenty-five thousand dollars ($25,000). Prior approval shall be granted based upon determination by the Division of Medical Assistance that the cost is reasonable considering the specifics of the installation. The burden to provide adequate documentation that the cost is reasonable is the responsibility of the provider. (2) The unreimbursed installation cost shall be reimbursed after audit through the annual Cost Settlement Process. This portion shall be offset by profits, after taking into consideration any indirect profits and direct losses. Any overpayments determined after audit shall be returned to the program by the provider through the annual cost settlement process. 1505 NORTH CAROLINA REGISTER March 1, 2000 14:17 PROPOSED RULES (3) The installation of the Sprinkler System is subject to Prudent Buyer Standards contained in the HCFA-15. (4) The Sprinkler System's installation costs shall be properly recorded on the provider's ICF-MRCost Report. Authority G.S. I08A-25(b): 108A-54; 108A-55; 42C.F.R. Part 447, Subpart C; SUBCHAPTER 26M - MANAGED CARE AND PREPAID PLANS SECTION .0300 - MENTAL HEALTH MANAGED CARE-CAROLINA ALTERNATIVES .0301 PROGRAM DEFINITION AND DEFINITION OF TERMS .0302 ACCESS TO CARE .0303 ENROLLEE EDUCATION .0304 RELATIONSHIP WITH SUB-CONTRACTORS .0305 ENROLLEE AND SUB-CONTRACTOR APPEALS Authority G.S. 108A-25(b); 222(g); 42CFR.431. 108A-54-55; S.L. 1993, c. 321, s. TITLE 16 - DEPARTMENT OF PUBLIC EDUCATION Notice is hereby given in accordance with G.S. 150B-21.2 that the State Board ofEducation intends to amend the rule cited as 16 NCAC 6C .0402. Notice of Rule-Making Proceedings was published in the Register on December 1, 1999. Proposed Effectiye Date: April 1, 2001 A Public Hearing will be conducted at 9: 30 am on March 16, 2000 in Room 224, Education Bldg, Raleigh, NC. Reason for Proposed Action: Chapter 1999-170 enacted G.S. 1 15C-12.2, requiring the State Board of Education to adopt rules concerning voluntary shared lea\>e. Comment Procedures: Comments may be presented orally or in writing at the hearing, and in writing through March 31, 2000, by mail directed to Harry Wilson, State Board of Education, 301 N. Wilmington St., Raleigh, 27601-282.5; by fax to (919) 715-0764; or by e-mail to hwilson@dpi.state. nc. us. Fiscal Impact State Local Sub. None • CHAPTER 6 -ELEMENTARY AND SECONDARY EDUCATION SUBCHAPTER 6C - PERSONNEL SECTION .0400 - LEAVE .0402 SICK LEAVE (a) Public school employees who earn vacation leave shall also cam sick leave. Full-time employees shall earn one day per month or the number of hours worked daily by a full time employee in that class of work. Part-time employees shall earn and may use sick leave in proportion to the part of the day for which they are employed. (b) The LEA may allow sick leave to be used for temporary disability which prevents an employee from performing his or her usual duties, illness in the employee's immediate family and attendant medical appointments which require the employee's attendance, death in the immediate family and medical appointments for the employee. The For purposes of this Rule the term immediate family includes shall include spouse, children, parents (including the step rel ationship ) parents, brothers, sisters, grandparents, grandchildren, and dependents hving in the household, except that in tlie case of death, the t erm does not include dependents but does—include siblings, giandparent s, gi'aiidchildren, and the step, half and in-law relat ionships, household. The term shall also mclude the step, half and in-law relationships. An employee of any public school system contribute vacation or sick leave to another immediate family member who is employed by any State agency or public school system. (c) Employees must take leave in one-half days, whole days, or hours as determined for earning purposes by the local board. (d) Employees may accumulate sick leave indefinitely and may transfer sick leave as in the case of vacation leave. (e) LEAs may advance sick leave not to exceed the amount which would be earned within the school year. (f) An employee who is overdrawn on sick leave when the employee separates from service will have the excess leave corrected through a deduction from the final salary check. (g) If the period of sick leave taken is less than 30 days, the employee will return to his or her position with the LEA. If the period of temporary disabihty exceeds 30 days, the superintendent shall determine when the employee is to be reinstated. The superintendent makes this decision based on the welfare of the students and the need for continuity of instruction. (h) The LEA shall credit an employee who separates from service and returns within 60 months with all sick leave accumulated to the time of separation. (i) Permanent full or part-time mstructional personnel, excluding teacher assistants, who are absent due to their personal illness or injury in excess of their accumulated sick leave, shall be allowed extended sick leave of up to 20 work days throughout the regular term of employment. These days do not have to be consecutive A new employee must have reported to work to be eligible for extended sick leave. The superintendent may require a doctor's certificate or other acceptable proof of the reason for the absence. (j) An LEA may establish a voluntary sick leave bank for its employees. Any employee of an LEA that establishes a ]4:17 NORTH CAROLINA REGISTER March 1, 2000 1506 PROPOSED RULES voluntary sick leave bank may, but is not required to, participate in the voluntary sick leave bank. (1) The LEA shall develop and implement a plan for participation that shall include those factors listed in G.S. 115C-336(b)(iHvii) and the following: (A) a uniform number of days to be contributed to the bank by participants; (B) provisions for legitimate usage of days by participants; (C) means to protect against overdraft of total contributed days; and (D) safeguards to prevent abuses by participants. (2) The LEA shall establish a sick leave bank committee to administer the sick leave bank. (A) The LEA shall assure that all local personnel are equitably represented on the committee. (B) The LEA shall develop operational rules for the efficient and effective functioning ofthe bank. (C) The LEA shall develop procedures for participants' usage of days based upon requirements in the plan. (D) The LEA shall specify the limits of the committee's authority. (E) The committee shall notify all participating employees of the ways in which their participation will affect their state retirement account. (3) The LEA shall ensure that its operational procedures require: (A) that payment ofsubstitutes and matching social security are charged to the appropriate program report code; and (B) the reporting to the division of school business services of the Department of the number of employees participating itemized by job classification, the number of sick leave days withdrawn, the cost ofthe leave, and other data required for fiscal and programmatic accountability. Authority G.S. 115C-12(8); 115C-336. ************+*+* Notice is hereby given in accordance with G.S. I50B-21.2 that the Slate Board of Education intends to amend rules cited as 16 NCAC 6D .0305 - .0306, .0503. Notice of Rule - Making Proceedings was published in the Register on December 1. 1999. Proposed Effective Date: July 1, 2000 APublicHearing for 16 NCAC 6D. 0305 -.0306,. 0503 will be conducted at 10:30 am on March 16, 2000 in Room 224, Education Bldg, Raleigh, NC. Reason for Proposed Action: The State Board ofEducation has determined that these rules are directly related to the implementation of the "ABC's Act" and it is proceeding under the authority granted by thatAct. The State Board ofEducation has determined that there should be greater uniformity among high schools in how end-of-course tests are factored into student final grades. The Board has also determined that sanctionsfor violation ofits testing code ofethics are needed to deal with those instances where educators misuse the testing program to distort the student performance of a class or of a school. The Board has also determined that high school students should be allowed to choose among several courses of study, each ofwhich leads to graduation. Comment Procedures: Comments may be presented orally or in writing at the hearing, and in writing through March 31, 2000, by mail directed to Harry Wilson, State Board of Education, 301 N. Wilmington St., Raleigh, 27601-2825; byfax to (919) 715-0764; or by e-mail to hwilson@dpi. state. nc.us. Fiscal Impact State Local Sub. None / CHAPTER 6 -ELEMENTARY AND SECONDARY EDUCATION SUBCHAPTER 6D - INSTRUCTION SECTION .0300 - CERTIFICATION .0305 END-OF-COURSE TESTS (a) The LEA shall include each student's end-of-course test results in the student's permanent records and high school transcript. (b) The LEA shall give each end-of-course test within a 1 10- minute period within the final ten days of the course. (c) Starting with the 2000-2001 school year LEAs shall use EOC test results as at least 25% of the student's final grade for the following courses: English 1. Algebra 1. Biology. US History, and Economic. Legal, and Pohtical Systems (ELPS). LEAs shall use EOC test results from other courses as a part ofthe student's final grade. LEAs shall adopt policies regarding the use ofEOC test results in assigning final grades. (d) Students who are enrolled for credit in courses in which end-of-course tests are required shall take the appropriate end-of- course test. (e) Students who are exempt from final exams by local board of education policy shall not be exempt from end-of-course tests. (f) Each student shall take the appropriate end-of-course test the first time the student takes the course even ifthe course is an honors or advanced placement course. (g) Students shall take the appropriate end-of-course test at the end of the course regardless of the grade level in which the course is offered. (h) Students who are identified as failing a course for which an end-of-course test is required shall take the appropriate end-of- course test. (i) Effective with the 1999-2000 school year students may 1507 NORTH CAROLINA REGISTER March 1, 2000 14:17 PROPOSED RULES drop a course with an end-of-course test within the first 1 days of a block schedule or within the first 20 days of a traditional schedule. Authority G.S. lI5C-12(9)c; 115C-81 (b)(4). .0306 TESTING CODE OF ETHICS (a) This Rule shall apply to all public school employees who are involved in the state testing program. (b) The superintendent or superintendent's designee shall develop local policies and procedures to ensure maximum test security in coordination with the pohcies and procedures developed by the test publisher. The principal shall ensure test security within the school building. (1) The principal shall store test materials in a secure, locked area. The principal shall allow test materials to be distributed immediately prior to the test administration. Before each test administration, the building level test coordinator shall accurately count and distribute test materials. Immediately after each test administration, the building level test coordinator shall collect, count, and return all test materials to the secure, locked storage area. (2) "Access" to test materials by school personnel means handling the materials but does not include reviewing tests or analyzing test items. The superintendent or superintendent's designee shall designate the personnel who are authorized to have access to test materials. (3 ) Persons who have access to secure test materials shall not use those materials for personal gain. (4) No person may copy, reproduce, or paraphrase in any manner or for any reason the test materials without the express written consent of the test publisher. (5) The superintendent or superintendent's designee shall instruct personnel who are responsible for the testing program in testing administration procedures. This instruction shall include test administrations that require procedural modifications and shall emphasize the need to follow the directions outlined by the test pubhsher. (6) Any person who learns of any breach of security, loss of materials, failure to account for materials, or any other deviation from required security procedures shall immediately report that information to the principal, building level test coordinator, school system test coordinator, and state level test coordinator. (c) Preparation for testing. (1) The superintendent shall ensure that school system test coordinators: (A) secure necessary materials; (B) plan and implement training for building level test coordinators, test administrators, and proctors; (C) ensure that each building level test coordinator and test administrator is trained in the implementation of procedural modifications used during test administrations; and (D) in conjunction with program administrators, ensure that the need for test modifications is documented and that modifications are limited to the specific need. (2) The principal shall ensure that the building level test coordinators: (A) maintain test security and accountability oftest materials; (B) identify and train personnel, proctors, and backup personnel for test administrations; and (C) encourage a positive atmosphere for testing. (3) Test administrators shall be school personnel who have professional training in education and the state testing program. (4) Teachers shall provide instruction that meets or exceeds the standard course of study to meet the needs of the specific students in the class. Teachers may help students improve test-taking skills by; (A) helping students become familiar with test formats using curricular content; (B) teaching students test-taking strategies and providing practice sessions; (C) helping students learn ways of preparing to take tests; and (D) using resource materials such as test questions from test item banks, testlets and linking documents in instruction and test preparation. (d) Test administration. (1) The superintendent or superintendent's designee shall: (A) assure that each school establishes procedures to ensure that all test administrators comply with test publisher guidelines; (B) inform the local board of education of any breach of this code of ethics; and (C) inform building level administrators of their responsibilities. (2) The principal shall: (A) assure that school personnel know the content of state and local testing pohcies; (B) implement the school system's testing policies and procedures and establish any needed school policies and procedures to assure that all ehgible students are tested fairly; (C) assign trained proctors to test adminisfrations; and (D) report all testing irregularities to the school system test coordinator. (3) Test administrators shall: (A) administer tests according to the directions in the administration manual and any subsequent updates developed by the test publisher; (B) administer tests to all eligible students: (C) report all testing irregularities to the school system test coordinator; and (D) provide a positive test-taking climate. (4) Proctors shall serve as additional monitors to help the 14:17 NORTH CAROLINA REGISTER March 1, 2000 1508 PROPOSED RULES test administrator assure that testing occurs fairly. (e) Scoring. The school system test coordinator shall: (1) ensure that each test is scored according to the procedures and guidelines defined for the test by the test publisher; (2) maintain quality control during the entire scoring process, which consists of handling and editing documents, scanning answer documents, and producing electronic files and reports. Quality control shall address at a minimum accuracy and scoring consistency. (3) maintain security of tests and data files at all times, including: (A) protecting the confidentiality of students at all times when pubhcizing test results; and (B) maintaining test security of answer keys and item-specific scoring rubrics. (f) Analysis and reporting. Educators shall use test scores appropriately. This means that the educator recognizes that a test score is only one piece of information and must be interpreted together with other scores and indicators. Test data help educators understand educational patterns and practices. The superintendent shall ensure that school personnel analyze and report test data ethically and within the limitations described in this paragraph. (1) Educators shall release test scores to students, parents, legal guardians, teachers, and the media with interpretive materials as needed. (2) Staff development relating to testing must enable personnel to respond knowledgeably to questions related to testing, including the tests, scores, scoring procedures, and other interpretive materials. (3) Items and associated materials on a secure test shall not be in the public domain. Only items that are within the public domain may be used for item analysis. (4) Educators shall maintain the confidentiality of individual students. Publicizing test scores that contain the names of individual students is unethical. (5) Data analysis of test scores for decision-making purposes shall be based upon: (A) dissagregation of data based upon student demographics and other collected variables; (B) examination of grading practices in relation to test scores; and (C) examination of growth trends and goal summary reports for state-mandated tests. (g) Unethical testing practices include, but are not limited to, the following practices: ( 1 ) encouraging students to be absent the day of testing; (2) encouraging students not to do their best because of the purposes of the test; (3) using secure test items or modified secure test items for instruction; (4) changing student responses at any time; (5) interpreting, explaining, or paraphrasing the test directions or the test items; (6) reclassifying students solely for the purpose of avoiding state testing; (7) not testing all eligible students; (8) failing to provide needed modifications during testing, if available; (9) modifying scoring programs including answer keys, equating files, and lookup tables; (10) modifying student records solely for the purpose of raising test scores; (11) using a single test score to make individual decisions; and (12) misleading the pubhc concerning the results and interpretations of test data. {h} In the event of a violation of this Rule, the SBE may impose any one or more of the following sanctions: (1) withhold ABCs incentive awards from individuals or from all eligible staff in a school; (2) file a civil action against the person or persons responsible for the violation for copyright infringement or for any other available cause of action; (3) seek criminal prosecution of the person or persons responsible for the violation; and (4) suspend or revoke the professional license of the person or persons responsible for the violation. Authority G.S. 115C-12(9)c; 115C-81 (b)(4). SECTION .0500 - PERFORMANCE APPRAISAL SYSTEM .0503 STATE GRADUATION REQUIREMENTS (a) In order to graduate and receive a high school diploma, public school students shall meet the requirements ofparagraph (b) and shall attain passing scores on competency tests adopted by the SBE and administered by the LEA. Students who satisfy all state and local graduation requirements but who fail the competency tests shall receive a certificate of achievement and transcript and shall be allowed by the LEA to participate in graduation exercises. ( 1 ) The passing score for the competency test, which is the same as grade-level proficiency as set forth in Rule .0502 of this Subchapter, shall be level 111 or higher. (2) Special education students may apply in writing to be exempted from taking the competency tests. Before it approves the request, the LEA must assure that the parents, or the child if aged 1 8 or older, understand that each student must pass the competency tests to receive a high school diploma. (3) Any student who has failed to pass the competency tests by the end ofthe last school month ofthe year in which the student's class graduates may receive additional remedial instruction and continue to talie the competency tests during regularly scheduled testing until the student reaches maximum school age. (b) In addition to the requirements of Paragraph (a), students must successfiilly complete 20 course units in grades 9-12 as specified below. 1509 NORTH CAROLINA REGISTER March I, 2000 14:17 PROPOSED RULES (ivj tv] (1) Effective with the class entering ninth grade for the first time in the W98=99 2000-2001 school year, the 2 coijjse units must include* students shall select one of the following three courses of study: II. Ill, and IV: career preparation, which shall include: (i} four credits in English language ^Is^, which shall be English 1, 11, III, and IV: £ii} three credits in mathematics, one of which shall be algebra I (except as hmited by OS, 115C-8Ub")): (iii) three credits in science, which shall include biology, a physical science, and earth/environmental science: three credits in social studies, which shall be Economic. Legal and Political Systems (ELPS). U.S. history, and world studies: one credit in health and physical education: yi four credits in career/technical education, which shall be in a career concentration or pathway that leads to a specific career field and which shall include a second-level (advanced) course: (vii) two elective credits: and (viii) other credits designated by the LEA. (B) three units in matliemalics, one of wliich must be Algebra- 1; college technical preparation. which shall include: (i) four credits in English language arts, which shall be English I, II, 111, and IV: (ii) three credits in mathematics, which shall be either algebra I. geometry, and algebra II; or algebra l^ technical mathematics L, and technical mathematics II: or integrated mathematics I. II. and 111: (iii) three credits in science, which shall include biology, a physical science, and earth/environmental science: £iy} three credits in social studies, which shall be Economic. Legal and Pohtical Systems (ELPS). U.S. history, and world studies: (v) one credit in health and physical education. (vi) four credits in career/technical education, which shall be in a career concentration or pathway that leads to a specific career field and which shall include a second-level (advanced) course: (vii) two elective credits: and (viii) other credits designated by the LEA. sociaLstudies, one ofwhich must be in gov ermnent and economics, one in United States liistory and one ui world studies; college preparation, which shall include: (i) four credits in English language arts. which shall be English I. II. Ill, and IV: tiD three credits in mathematics, which (iii} (iy) (V] lyil shall be algebra I^ algebra IL, and geometry or a higher level course for which algebra U is a prerequisite: or integrated mathematics I. II. and III: three credits in science, which shall include biology, a physical science, and earth/environmental science: three credits in social studies, which shall be Economic. Legal and Political Systems (ELPS). U.S. history, and world studies: one credit in health and physical education: six elective credits: and other credits designated by the LEA. NOTE: For admission into the UNC System it is recommended that at least two elective credits be in one second language and that one of these credits be taken in the twelfth grade. (©) tlu'ee units in science, one of wliich must be biology, one a physical sci ence, and effective widi tlie class entering nintii grade for the 2000-2001 s c h o oH y e ar, aire eartli/enviromnental sci ence; (E) one unit in physical educat ion and health; and (F) six units designated by tlie LrEA, wliich may be undesignated electives or coui'ses designated fi"om the standai'd couise of study. (2) LEAs may count successfiil completion of course work in the ninth grade at a school system which does not award course units in the ninth grade toward the requirements of this Rule (3) LEAs may count successful completion of course work in grades 9-12 at a summer school session toward the requirements of this Rule. (4) LEAs may count successful completion of course work in grades 9-12 at an off-campus institution toward the requirements of paragraph (b)(1)(F) this Rule. 23 NCAC 2C .0305 shall govern enrolhnent in community college institutions. (c) Effective with the class of 2001, all students must demonstrate computer proficiency as a prerequisite for high school graduation The passing scores for this proficiency shall be 47 on the multiple choice test and 49 on the performance test. This assessment shall begin at the eighth grade A student with disabilities shall demonstrate proficiency by the use of a portfoho if this method is required by the student's lEP. (d) Special needs students as defined by G.S. 115C-109, excluding gifted and pregnant, who do not meet the requirements for a high school diploma shall receive a graduation certificate and shall be allowed to participate in graduation exercises if they meet the following catena: (1) successfiil completion of 20 course units by general 14:17 NORTH CAROLINA REGISTER March 1, 2000 1510 PROPOSED RULES subject area (4 English, 3 math, 3 science, 3 social studies, 1 health and physical education, and 6 local electives) under Paragraph (b). These students are not required to pass the specifically designated courses such as Algebra I, Biology or United States history, (2) completion of all lEP requirements. AuthohtyG.S. U5C-12(9b): 115C-81 (b)(4); N.C. Constitution. Article IX, Sec. 5. 1511 NORTH CAROLINA REGISTER March 1, 2000 14:17 TEMPORAR Y RULES This Section includes temporary rules reviewed by the Codifier ofRules and entered in the North Carolina Administrative Code and includes, from time to time, a listing oftemporary rules that have expired. See G.S. I50B-21 i and 26 NCAC 2C .0500 for adoption andfiling requirements. Pursuant to G.S. 150B-2I.l(e), publication of a temporary rule in the North Carolina Register serves as a notice of rule-making proceedings unless this notice has been previously published by the agency. TITLE 2 - DEPARTMENT OF AGRICULTURE Rule-making Agency: North Carolina Department of Agriculture and Consumer Services Rule Citation: 2 NCAC 55 .0101 - .0104; .0201 -.0203; .0301 - .0303; .0401 - .0403; .0501 - .0503 Effective Date: February 1, 2000 Findings Reviewed by Julian Mann III: Approved Authority for the rule-making: S.L 1999-463, s.4 Reason for Proposed Action: The legislativefindings in S.L. 1999-463, the Hurricane Floyd RecoveryAct of1999, document the effects ofHurricane Floyd on agriculture and the needfor immediate assistance due to the impact on the public health, safety, and welfare, and are incorporated herein by reference, and copy is attached. Section 4 ofS.L 1999-463 also provides authority for State agencies to adopt temporary rules to implement Hurricane Floyd assistance programs. Comment Procedures: Written comments may be submitted to David S. McLeod, APA Coordinator, North Carolina Department of Agriculture and Consumer Services, Legal Affairs Office, PO Box 27647, Raleigh, NC 27611. CHAPTER 55 - HURRICANE FLOYD RECOVERY PROGRAMS FOR AGRICULTURE SECTION .0100 - PURPOSE; AVAILABILITY OF FUNDS; DEFINITIONS; EXPIRATION .0101 PURPOSE The purpose of this Chapter is to establish guidelines for the implementation ofdisaster assistance programs for fanners who suffered losses as a result of Hurricane Floyd The assistance provided under this Chapter is intended to supplement federal disaster assistance programs. This program is authonzed by the Hurricane Floyd Recovery Act, Session Law 1999-463 of the 1999 Extra Session of the General Assembly. History Note; Authority S.L 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0102 AVAILABILITY OF FUNDS The assistance programs described in this Chapter are subject to the availability of funds from the Hurricane Floyd Reser\'e Fund in the Office of State Budget and Management, or from other sources. This program shall be administered in accordance with the Hurricane Floyd Recovery Act and the requirements of the Office of State Budget and Management. History Note; Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. means the Commissioner of .0103 DEFINITIONS As used in this Chapter: (1) "Commissioner" Agriculture. (2) "Department" means the Department of Agriculture and Consumer Services. (3) "Disaster area" means the counties that were declared a disaster by the President of the United States as a result of Hurricane Floyd. (4) "FSA" means the Farm Service Agency of the United States Department of Agriculture. (5) "USDA" means the United States Department of Agriculture. History Note; Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0104 EXPIRATION This Chapter shall expire on December 31. 2000. History Note; Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February /, 2000. SECTION .0200 - CROP LOSS AND LIVESTOCK LOSS ASSISTANCE .0201 ELIGIBILITY FOR ASSISTANCE A producer who is eligible for crop or livestock disaster assistance from USDA-FSA shall be eligible for assistance under this program. In addition, a producer who is riot eligible for federal assistance may be eligible for assistance under this program if he or she has a loss documented by USDA-FSA. A "swine operation integrator." as defined in G.S. 143-215. lOH. shall not be eligible for livestock loss assistance. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0202 APPLICATION PROCEDURES Assistance under this program shall be based on information provided to the Department by USDA-FSA. No additional application shall be required. 14:17 NORTH CAROLINA REGISTER March 1, 2000 1512 TEMPORARY RULES History Note: Authority S.L J 999-463, s. 4; Temporary Adoption Eff. February 1. 2000. .0203 MAXIMUM LEVEL OF ASSISTANCE Subject to availability of funds, assistance may be provided in amounts not to exceed: (1) 1 7 percent ofa producer's crop loss as documented by USDA-FSA: and (2) 30 percent of a producer's livestock loss as documented by USDA-FSA. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February I, 2000. A producer vyho is eligible for assistance under the USDA-FSA Emergency Conservation Program shall be eligible for the cost share buy down assistance program. History Note: Authority S.L. J 999-463, s. 4; Temporary Adoption Eff. February /, 2000. .0402 APPLICATION PROCEDURES Assistance under this program shall be based on information provided to the Department by USDA-FSA from the producer's application for assistance from USDA-FSA under the Emergency Conservation Program, shall be required. No additional application SECTION .0300 - STRUCTURES AND EQUIPMENT LOSS ASSISTANCE History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0301 ELIGIBILITY FOR ASSISTANCE A farm owner or operator whose uninsured farm structures, farm roads or farm equipment were damaged or destroyed as a result of Hurricane Floyd may submit an application for assistance under this program to the USDA-FSA county office on a form provided by the Department. "Structures" shall not include lagoons, as defined in G.S. 106-802. Applications must be received in the USDA-FSA county office by March 15. 2000. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1. 2000. .0302 APPLICATION PROCEDURES Applications shall be forwarded by USDA-FSA to the Department. The Department shall determine eligibility for assistance based on information provided by the farm owner or operator in the application. The application shall include: (1) a copy of an invoice or estimate for repairs, not to exceed fair market value prior to Hurricane Floyd: or (2) in the case of a total loss, a copy of an appraisal ofthe fair market value prior to Hurricane Floyd. The invoice, estimate, appraisal or other supporting information must have been prepared by a person who is known to be competent to prepare such estimates or appraisals and who has no financial interest in the applicant's farm operations. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0303 MAXIMUM LEVEL OF ASSISTANCE Subject to availability of funds, assistance may be provided in amoimts not to exceed 40 percent of uninsured structure or equipment loss, or 50 percent of farm road restoration cost. History Note: Authority SL. 1999-463. s. 4; Temporary Adoption Eff February 1. 2000. SECTION .0400 - EMERGENCY CONSERVATION PROGRAM COST SHARE BUY DOWN .0401 ELIGIBILITY FOR ASSISTANCE .0403 MAXIMUM LEVEL OF ASSISTANCE Subject to availability of funds. assistance may be provided in amounts not to exceed 1 8 percent ofthe total cost ofthe practice approved by USDA-FSA. Assistance provided under this Section may not be used to repair or rebuild a "lagoon." as defined in G.S. 106-802. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. SECTION .0500 - COMMODITY ASSOCL\TIONS AND COOPERATIVES ASSISTANCE .0501 APPLICATIONS FOR ASSISTANCE Commodity associations and cooperatives may submit an application for assistance to the Commissioner ofAgriculttire on a form provided by the Department. History Note: Authority S.L. 1999-463. s. 4; Temporary Adoption Eff. February 1. 2000. .0502 ELIGIBILITY FOR ASSISTANCE A commodity association or cooperarive shall provide documentation of losses suffered due to Hurricane Floyd. History Note: Authority S.L. 1999-463, s. 4; Temporary Adoption Eff. February 1, 2000. .0503 LEVEL OF ASSISTANCE Subject to availability of funds, the Commissioner of Agriculture may provide assistance to commodity associations or cooperatives on a eto rata basis for losses suffered due to Hurricane Floyd. History Note: Authority SL. 1999-463, s. 4; Temporary' Adoption Eff. February L^ 2000. TITLE 4 - DEPARTMENT OF COMMERCE Rule-makJng Agency: Department ofCommerce 1513 NORTH CAROLINA REGISTER March 1, 2000 14:17 TEMPORARY RULES Rule Citation: 4 NCAC IM.0101-.0107 Effective Date: February 1, 2000 Findings Reviewed and approved by: Julian Mann, III Authority for the rule-making: S.L. 1999-463 Reason for Proposed Action: Rules governing loans and interest rebates to small businesses damaged by Hurricane Floyd Comment Procedures: Comments or questions may be directed to Gene Byrd, Department of Commerce, 418 Mail Service Center, Raleigh, NC 27699-4318, (919) 715-5747. CHAPTER 1 - DEPARTMENTAL RULES SUBCHAPTER IM - HURRICANE FLOYD BUSINESS ASSISTANCE PROGRAMS .0102 ELIGIBILITY (a) All businesses must apply for a SBA disaster business loan to be eligible for these programs. (1) Interest rebates will be available to aU business owners who borrow from the SBA and will be based on the amount ofmoney borrowed and the repayment terms. Amounts approved by the SBA and amounts actually disbursed by them may differ. Rebates will be based on the funds actually disbursed. (2) A business owner that exhausts the SBA funding and reconsideration process and submits proof of having been a legitimate business prior to the disaster will be eligible for NC READE flmds. (b} Examples of proof include, but are not limited to, possession of a valid business hcense. a business plan, and a commercial property lease. (c) Abusiness must demonstrate the potential to recover from the disaster and remain an going concern with the infusion of NC READE fimds. SECTION .0100 - GENERAL INFORMATION .0101 SCOPE (a) The Department ofCommerce shall operate a program of assistance to businesses in order to protect jobs in the disaster-damaged counties of eastern North Carolina. (b) Interest rebates shall be available to business owners who are approved for a disaster business loan from the U. S. Small Business Adminisfration (SBA) for physical damage or economic injury to their business as a result of Hurricane Floyd. (c) A loan program for businesses that do not qualify for SBA loans shall be knovro as the NC Recovery and Development Fund (NC READE). Loans will be available to businesses for both physical damage and economic injury suffered as a result of Hurricane Floyd. Loans will be made to businesses that suffered damage and have been unable to qualify for a Small Business Administration (SBA) disaster business loan. A business will be deemed to be unable to qualify for a SBA disaster business loans when: (1) an initial application for SBA loan has been declined: and (2) an application for reconsideration by SBA has also been declined. (d) The business must be located in one of the counties declared a major disaster as a result of Hurricane Floyd by the President of the United States under the Stafford Act (P. L. 93- 288). (e) Applications will be accepted for six months following the final application deadline for SBA business loans for physical damage caused by Hurricane Floyd. (D NC READE applicants must have contacted a Business Recovery Assistance Center b^ the final deadline to start the SBA reconsideration process. History Note: Authority G.S. 150B-21. 1; S.L 1999-463; Temporary Adoption Eff. February I. 2000 to expire on January 1, 2003 History Note: Authority G.S. 150B-21. 1; SL. 1999-463; TemporaryAdoption Eff. February 1, 2000 to expire on January 1, 2003. .0103 BENEFITS UNDER THE INTEREST REBATE PROGRAM The interest rebate program will offer rebates equal to the interest payments projected to be made by the successfiil SBA business borrower for the first three years on the finalized SBA disaster business loan from damage sustained as a result of Hurricane Floyd. History Note: Authority G.S. 1508-21. 1; SL. 1999-463; TemporaryAdoption Eff. February 1, 2000 to expire on January 1. 2003. .0104 BENEFITS UNDER NC READE (a) A NC READE loan yyill be for a period ofeight years. All payments will be deferred for the first three years and the loan will accrue no interest during that period. The final five-year period will accrue interest at 4% and will amortize the principal balance through regular monthly payments of principal and interest. There will be no penalty for early repayment. (b) Maximum funding under NC READE will be tied to the number of jobs provided by the business prior to Hurricane Floyd. Regardless of the maximum funding for which the business qualifies, fimding will not exceed the actual physical damage and economic injury sustained by the business from Hurricane Floyd. (c) The number of jobs provided by each business will be verified by Form NCUl 101 filed by the business with the Employment Security Commission of North Carolina (ESC). (1) A business that provides 5 jobs will be eligible for maximum funding of twenty-five thousand dollars ($25.000). (2) A business that provides 6-10 jobs will be eligible for maximum funding of twenty-five thousand dollars 14:17 NORTH CAROLINA REGISTER March 1, 2000 1514 TEMPORAR Y RULES Ql 14} £5] ($25.000), plus four thousand dollars ($4.000) for each incremental job. A business that provides 1 1-25 jobs will be eligible for maximum funding of forty-five thousand dollars ($45.000). plus three thousand dollars ($3.000) for each incremental job. A business that provides 26-100 jobs will be ehgible for maximum fimding of ninety thousand dollars ($90.000). plus two thousand five hundred dollars ($2.500) for each incremental job. A business that provides in excess of 1 00 jobs will be eligible for maximum funding oftwo hundred seventy seven thousand, five hundred dollars ($277.500) plus two thousand dollars ($2.000) for each incremental job. (6) The N. C. Department of Commerce will determine maximum funding for businesses that provide over 100 jobs on a case-bv-case basis. History Note: Authority G.S. 150B-2I. 1; S.L. 1999-463; TemporaryAdoption Eff. February 1, 2000 to expire on January 1. 2003. .0105 PROCEDURES FOR INTEREST REBATE FOR SBA BORROWERS (a) Applicants will apply for interest rebates through the Business Recovery Assistance Centers (BRAC ) administered by the University of North Carolina (UNO Small Business and Technology Development Centers (SBTDC) in cooperation with the Department of Commerce. (b) The borrower will present to the BRAC Counselor a copy ofhis Loan Authorization and Agreement and a copy ofhis most recent disbursement letter showing the outstanding balance of the loan. TTie BRAC counselor will perform a mathematical calculation to estimate the interest to be paid by the borrower over the ensuing three years. The borrower will affirm that he is entitled to this interest rebate, that the information is true and correct to the best of his knowledge and that the rebate will not be used to duplicate any benefits received under any Federal program. Upon completion of the request and supporting documents, the BRAC counselor will forward said banks m m Oi application to one of the two agent payment. for (c) Upon receipt by the bank, the documents will be reviewed for completeness, a check will be prepared and mailed to the borrower. The bank will forward said check to the borrower within five working days of the receipt of the request. (d) The borrower will receive a notice with the rebate check to inform the recipient that rebate proceeds are subject to federal duplication of benefits limitations and that the State of North Carolina vyill inform the SBA that the borrower has received the rebate. History Note: Authority G.S. 150B-21. 1; S.L. 1999-463; TemporaryAdoption Eff. February I, 2000 to expire on January 1, 2003. .0106 PROCEDURES FOR NC READE (a) Applicants will apply for NC READE through the Business Recovery Assistance Centers (BRAQ administered by the University of North Carolina (UNC) Small Business and Technology Development Centers (SBTDC) in cooperation with the Department of Commerce. (b) The applicant will bring the decline letter fi-om the SBA to the Business Recovery Assistance Center. Additionally, the applicant should bring a copy ofthe completed SBA applicadon. the most recent pre-Hurricane Floyd NCUI 101 and other documentation supporting the situation of the business before the hurricane and the extent of damage suffered firom the hurricane. (c) If the applicant does not have the required information, the BRAC will prepare a written request to the SBA for specific file items required to make a decision. (d) If the SBA. on their first review has declined the applicant, the BRAC will assist the applicant to address any deficiencies noted by the SBA. The BRAC will ensure re-submission of the application. (e) Upon resubmission to the SBA. the approved NC READE applications will be submitted to agent banks for processing, document preparation and fimding. (f) Should the SBA approve a loan upon reconsiderafion. the borrower will repay the principal amount of the NC READE loan. History Note: Authority G.S 150B-21.1; S.L. 1999-463; TemporaryAdoption Eff February 1, 2000 to expire on January 1. 2003. .0107 APPEAL An applicant may appeal a fimding decision under these programs to the Office of the Assistant Secretary for Economic Development. NC Department of Commerce. The Assistant Secretary will convene a three-person committee to include himself, the Director ofthe Commerce Finance Division and one other member named by the Assistant Secretary. Upon a full and complete review of the facts in each case, the committee shall recommend a decision to the Secretary of Commerce. The decision of the Secretary shall be final. History Note: Authority G.S. 1503-21. 1; S.L. 1999-463; TemporaryAdoption Eff. February 1. 2000 to expire on January 1. 2003. TITLE 15A - DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES Rule-making Agency: NC Department of Environment and Natural Resources Rule Citation: 15A NCAC IC .0505; IP .0101-.0105; IQ .0101 1515 NORTH CAROLINA REGISTER March 1, 2000 14:17 TEMPORARY RULES Effecrive Date: February 4, 2000 Findings Reviewed and Approved by: Julian Mann, III Authority for the rule-making: G.S. JJ3A-4; 113A-6; 113A-U; 143B-10: S.L. Extra Session J 999-463. Part IV. c. 463. s. 4 Reason for Proposed Action: The NC Department of Environment and Natural Resources plans to adopt temporary rules for the expenditure of funds in relation to the Implementation Planfor Use ofHurricane Floyd ReliefFunds - House Bill 2 (Extra Session 1999) to thefollowing Sections: ISA NCAC IC .0505 - The Hurricane Floyd Recovery Act applies to activities that arefunded with public moniesfrom the Hurricane Floyd Reserve Fund and that are taken in response to the damage wrought by the hurricanes which occurred in North Carolina in September and October of 1999. The Department will streamline the breadth andscope ofits existing SEPA rules to expedite review of activities funded from the Fund. 15A NCAC IP. 0101:0105- Grants to Commercial Fishermen for Damages Caused by Hurricanes. To establish the application procedures, eligibility requirements, and process for disbursement offunds to commercialfishermen for loss of income orfor damages or loss ofequipment. 15A NCAC IQ.OIOl- Solid Waste Sites andJunkyards Section. Establish criteriafor remediating high risksolid waste sites and junkyards in the 100 year flood plains in areas affected by Hurricane Floyd. Comment Procedures: 15A NCAC IC .0505- Comments are welcomed and may be submitted to Ms. Melba McGee. DENR, Division ofLegislative and Intergovernmental Affairs. 1601 Mail Service Center, Raleigh. NC 27699-1601. (919) 715-4194. 15A NCAC 1P.0101-.0105 - Comments are welcomed and may be submitted to Juanita Gaskill, DENR, Division of Marine Fisheries. PO Box 769. Morehead City. NC 28557. 15A NCAC IQ .0101 - Comments are welcomed and may be submitted to Mr. BillMeyer. Director, DENR, Division ofWaste Management, 1646 Mail Service Center, Raleigh, NC 27699, (919) 733-0692. ext. 202. CHAPTER 1 - DEPARTMENTAL RULES SUBCHAPTER IC - CONFORMITY WITH NORTH CAROLINA ENVIRONMENTAL POLICY ACT SECTION .0500 - MINIMUM CRITERIA ,0505 NON-MAJOR HURRICANE RELIEF ACTIVITY The following minimum criteria are established as indicators of thresholds for activities undertaken in response to "The Hurricane Floyd Recovery Act of 1999" for which envirormiental documentation under the North Carolina Environmental Policy Act (NCEPA) is required. Activities which are below these thresholds are sufiRcientlv controlled by existing statutory and regulatory framework so that no additional environmental documentation under NCEPA is required. Asset forth in Rule .0503 of this Section, the Secretary may require environmental documentation for activities that would otherwise quality under these minimum criteria thresholds. These Hurricane Floyd Recovery Act minimum criteria apply to activities that are funded with public monies from the Hurricane Floyd Reserve Fund and that are conducted in response to the damage wrought by the hurricanes which occurred in North Carolina in September and October of 1999. Except as referenced in this Rule, these Hurricane Floyd Recovery Act minimum cnteria temporarily replace the minimum criteria in Rule .0504 of this Section. Activities and buildings including the following require documentation under NCEPA: (1) Structures located in the 1 00-year floodplain that are not raised above the 100-year flood plain building elevation for the site as recommended by FEMA or as required by local ordinance, whichever is more stringent. (2") "Subdivisions." as defined in G.S. 153A-335 and 160A-376. not served by an approved septic or other waste disposal system. (3} "Subdivisions," as defined m G.S. 153A-335 and 160A-376. without 20% open space included in the development plan or without a 50-foot or greater vegetated buffer along perennial and intermittent streams as indicated on the most current version of the 1:24.000 scale 17.5 minute quadrangle United States Geological Survey topographic map or the county soil survey map prepared by the Natural Resources Conservation Service of the United States Department of Agriculture. (4) Expansion of wastewater treatment systems or potable water systems in excess of the capacity required to serve replacement dwellings, replacement commercial structures, and replacement industrial facilities for Hurricane Floyd recovery and in excess of the activities identified in Rule .0504(3)(a). (3)(b) of this Section. (5) Filling or otherwise altering wetlands except in the replacement of single family dwellings when the entire tract of land is wetland and wetland fill is less than 1/3 acre and the building site is located so as to have the least negative impact foreseeable on the wetland. (6) Groundwater withdrawals in excess of those described in Rule .0504(3)(c ) of this Section. (7) Land disturbing activities covering an area greater than five acres that require a sediment and erosion control plan and are located within a High Quality Waters Zone or an Outstanding Resource Waters Zone. (8) Reforestation of woodlands not in accordance with the National Forest Service or the Division ofNC. of Forest Resources woodlands management plans. (9) Use of forestry best management practices not consistent with the performance standards in Forest Practice Guidelines Related to Water Quality codified 14:17 NORTH CAROLINA REGISTER March 1, 2000 1516 TEMPORARY RULES im (12) (13) (14) as 15ANCAC II. Removal of logs, stumps, trees, and other debris from stream channels in excess ofthose activities described in Rule .0503(3)(m) of this Section. Drainage projects where the mean seasonal water table elevation vyill be lowered more than one foot over an area of one square mile or more, and riparian and wetland areas will be permanently effected. Development activities within Areas of Environmental Concern ofthe 20-countv coastal area which require a CAMA Major or Minor Permit and are listed in Rule .0504(f) of this Section. Rebuilding in the 100-vear floodplain of any component of a liquid animal waste management system for which a permit is required under Part 1 or Part lA of Article 21 of Chapter 143 of the General Statutes, other than a land application site, when the total animal waste management system was damaged more than 50% of the total cost of new construction. Structures 50 years or older for which no separate law, rule or regulation dictates a formal review and approval process and for which detailed location maps have not been provided by the applicant to the North Carolina Department of Cultural Resources for action by the State's Historic Preservation Officer. History Note: Authority G.S.: 1I3A-4; 1 13A-6; 1 13A-1 1; 143B-10: S.L Extra Session 1999-463, Part IV, c.463, s.; TemporaryAdaption Eff. February 3. 2000 to expire on January 1. 2003. SUBCHAPTER IP - GRANTS TO COMMERCIAL FISHERMEN FOR HURRICANE DAMAGE SECTION .0100 - GRANTS TO COMMERCIAL FISHERMEN FOR HURRICANE DAMAGE .0101 GENERAL (a) Only commercial fishermen who held a valid Standard Commercial Fishing License. Retired Standard Commercial Fishing License or a Shellfish License for North Carolina Resident without a Standard Commercial Fishing License during September or October. 1999. and are determined by the Division of Marine Fisheries to be an affected fishermen in an affected fishery are eligible to apply for compensation for reimbursement of documented losses of commercial fishing income or for damage to or loss of commercial fishing equipment. (b) Until funds are exhausted, the maximum amount that shall be reimbursed any individual fisherman shall be 60 percent of the total loss of income and equipment combined. Once the total funds are e
Object Description
Description
Title | North Carolina register |
Date | 2000-03-01 |
Description | Vol. 14, issue 17 (March 1, 2000) |
Digital Characteristics-A | 206 p.; 12.13 MB |
Digital Format | application/pdf |
Pres File Name-M | pubs_serial_ncregister20000301.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_serial_ncregister\images_master |
Full Text |
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NORTHSARpLINA
EGIsfER
VOtUME14 ISSUE 17 • Pages 1492 - 1592
PUBLISHED BY
The Office ofAdministrative Hearings
Rules Division
6714 Mail Service Center
Raleigh, NC 27699-6714
Telephone (919) 733-2678
Fax (919) 733-3462
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11.13
For those persons that have questions or concerns regarding the Administrative Procedure Act or any of its
components, consult with the agencies below. The bolded headings are typical issues which the given
agency can address, but are not inclusive.
Rule Notices. Filings, Register. Deadlines. Copies of Proposed Rules, etc
Office of Administrative Hearings
Rules Division
Capehart-Crocker House "
424 North Blount Street
Raleigh, North Carolina 27601-2817
(919)733-2678
(919) 733-3462 FAX
contact: Molly Masich, Director APA Services
A' Ruby Creech, Publications Coordinator
iff *^ //
Fiscal Notes & Economic Analysis
// Office of State Budget and Management
jl 16 West Jones Street
fRaleigh, North Carolina 27603-8005
contact: Warren Plonk, Economist III
mmasich@oah.state.nc.us
rcreech@oah.state.nc.us
(919)733-7061
(919) 733-0640 FAX
wplonk@osbm.state
II
Rule Review and Legal Issues \
Rules Review Commission
\l^> 1307 Glenwood Ave., Suite 159
\\ Raleigh, North Carolina 27605
i; contact: Joe DeLuca Jr., Staff Director Counsel
Bobby Bryan, Staff Attorney
(919)733-2721
(919) 733-9415 FAX
\V\\rt«»v \r •NH
Legislative Process Concerning Rule-making
Joint Legislative Administrative Procedure Oversight Committee
545 Legislative Office Building
300 North Salisbury Street (919) 733-2578
"^
Raleigh, North Carolina 276 11 (9 19) 7 1 5-5460 FAX
contact: Mary Shuping, Staff Liaison marys@ms.ncga.state.nc.us >^
County and Municipality Government Questions or Notification
NC Association of County Commissioners
2 1 5 North Dawson Street (9 1 9) 7 1 5-2893
Raleigh, North Carolina 27603
contact: Jim Blackburn or Rebecca Troutman
NC League of Municipalities
215 North Dawson Street
Raleigh, North Carolina 27603
contact: Paula Thomas
(919)715-4000
This publication is printed on permanent, acid-free paper in compliance with G.S. 125-11 .13
NORTH CAROLINA
REGISTER
Volume 14, Issue 17
Pages 1492 - 1592
March 1, 2000
This issue contains documents officially filed
through February 9, 2000.
Office of Administrative Hearings
Rules Division
424 North Blount Street (27601)
6714 Mail Service Center
Raleigh, NC 27699-6714
(919)733-2678
FAX (919) 733-3462
Julian Mann 111, Director
Camille Winston, Deputy Director
Molly Masich, Director of APA Services
Ruby Creech, Publications Coordinator
Linda Dupree, Editonal Assistant
Jessica Flowers, Editorial Assistant
Dana Sholes, Editorial Assistant
IN THIS ISSUE
I. EXECUTIVE ORDERS
Executive Order 167 1492
II. IN ADDITION
Licensing Boards
Social Work Certification & Licensure Bd. . 1493
Voting Rights Letters 1494 - 1495
III. RULE-MAKING PROCEEDINGS
Environment and Natural Resources
Environmental Management 1496 - 1497
Health and Human Services
Child Care Commission 1496
Public Education
Elementary & Secondary Education 1497
Secretary of State
Securities Division 1497 - 1499
IV. PROPOSED RULES
Health and Human Services
Medical Assistance 1500 - 1506
Public Education
Elementary & Secondary Education 1506 - 15 1 1
V. TEMPORARY RULES
Agriculture
Hurricane Floyd Recovery Programs 1512-1513
Commerce
Departmental Rules 1513 - 1515
Environment and Natural Resources
Departmental Rules 1515 - 1520
Wildlife Resources Commission 1520 - 1522
Health and Human Services
Health Services 1522 - 1523
Licensing Boards
Cosmetic Arts Examiners 1523 - 1524
VL APPROVED RULES 1525 1566
Commerce
Cape Fear River Navigation & Pilotage Commission
Environment and Natural Resources
Coastal Resources Commission
Departmental Rules
Environmental Management
Health Services
Marine Fisheries Commission
Health and Human Services
Child Care Commission
Facility Services
Vocational Rehabilitation Services
Independent Agencies
Housing Finance Agency
Licensing Boards
Pharmacy, Board of
VII. RULES REVIEW COMMISSION 1567-1576
VIII. CONTESTED CASE DECISIONS
Index to ALJ Decisions 1577 - 1585
Text of Selected Decisions
99EHR0770 1586-1592
IX. CUMULATIVE INDEX 1-96
Norlli Carolina Register is published senu-monthK for $ 195 per \ear by the Office of Administrative Hearings, 424 North Blount Street. Raleigh, NC 2760 1
.
(ISSN 1 5200604) to mail at Penodicals Rates is paid at Raleigh, NC. POSTMASTER: Send Address changes to the Norlh Carolina Register, PO Drawer
27447. Raleigh. NC 2761 1-7447,
NORTH CAROLINA ADMINISTRA TIVE CODE CLASSIFICA TION SYSTEM
The North Carolina Administrative Code (NCAC) hasfour major subdivisions of rules. Two of these, titles and chapters,
are mandatory. The major subdivision of the NCAC is the title. Each major department in the North Carolina executive
branch of government has been assigned a title number. Titles are further broken down into chapters which shall be
numerical in order. The other two, subchapters and sections are optional subdivisions to be used by agencies when
apyropriale
.
TITLE/MAJOR DIVISIONS OF THE NORTH CAROLINA ADMINISTRATIVE CODE
TITLE DEPARTMENT LICENSING BOARDS CHAPTER
1 Administration Acupuncture 1
2 Agriculture Architecture 2
3 Auditor Athletic Trainer Examiners 3
4 Commerce Auctioneers 4
5 Correction Barber Examiners 6
6 Council of State Certified Public Accountant Examiners 8
7 Cultural Resources Chiropractic Examiners 10
8 Elections Employee Assistance Professionals 11
9 Governor General Contractors 12
10 Health and Human Services Cosmetic Art Examiners 14
11 Insurance Dental Examiners 16
12 Justice Dietetics/Nutrition 17
13 Labor Electrical Contractors 18
14A Crime Control & Public Safety Electrolysis 19
15A Environment and Natural Resources Foresters 20
16 Public Education Geologists 21
17 Revenue Hearing Ad Dealers and Fitters 22
18 Secretary of State Landscape Architects 26
19A Transportation Landscape Contractors 28
20 Treasurer Massage & Bodywork Therapy 30
*21 Occupational Licensing Boards Marital and Family Therapy 31
22 Administrative Procedures (Repealed) Medical Examiners 32
23 Community Colleges Midwifery Joint Committee 33
24 Independent Agencies Mortuary Science 34
25 State Personnel Nursing 36
26 Administrative Hearings Nursing Home Administrators 37
27 NC State Bar Occupational Therapists 38
Opticians 40
Optometry 42
Osteopathic Examination & Reg (Repealed) 44
Pastoral Counselors, Fee-Based Practicing 45
Pharmacy 46
Physical Therapy Examiners 48
Plumbing, Heating & Fire Sprinkler Contractors 50
Podiatry Examiners 52
Professional Counselors 53
Psychology Board 54
Professional Engineers & Land Surveyors 56
Real Estate Appraisal Board 57
Real Estate Commission 58
Refrigeration Examiners 60
Sanitarian Examiners 62
Social Work Certification 63
Soil Scientists 69
Speech & Language Pathologists & Audiologists 64
Substance Abuse Professionals 68
Therapeutic Recreation Certification 65
Veterinary Medical Board 66
Note: Title 2 1 contains the chapters of the various occupational licensing boards.
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